| Matter of Mary Kate VV. |
| 2009 NY Slip Op 01372 [59 AD3d 873] |
| February 26, 2009 |
| Appellate Division, Third Department |
| In the Matter of Mary Kate VV. and Another, Children Alleged tobe Neglected. Ulster County Department of Social Services, Respondent; Dennis VV.,Appellant. |
—[*1] Pamela J. Joern, Ulster County Department of Social Services, Kingston, for respondent. Claire Zimmerman Durst, Law Guardian, Woodstock.
Rose, J. Appeal from an order of the Family Court of Ulster County (Work, J.), enteredNovember 16, 2007, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to adjudicate the subject children to be neglected.
In 2002, petitioner filed a neglect petition against respondent. In 2004, following a hearing,Family Court (Mizel, J.) found that respondent had neglected his children by inflicting excessivecorporal punishment and issued a permanent order of protection. On appeal, we concluded thatFamily Court had failed to fully advise respondent of his statutory right to counsel and weremitted the matter for a new fact-finding hearing (25 AD3d 882 [2006]). After respondentmoved unsuccessfully to have the petition dismissed pursuant to Family Ct Act § 1051 (c),Family Court (Work, J.) conducted a new fact-finding hearing and found that he had inflictedexcessive corporal punishment and, thus, neglected the four children who were minors when thepetition was filed. A dispositional hearing regarding the two remaining minor children was thenheld and the court ordered that, among other things, respondent be placed under [*2]petitioner's supervision for one year, have only supervisedvisitation and comply with a final order of protection.[FN*]Respondent now appeals.
Initially, respondent contends that Family Court erred in denying his motion to dismiss theproceeding pursuant to Family Ct Act § 1051 (c) because the court's aid was no longerrequired. He argues that, at the time of his motion, he had no contact with the children and, thus,he could not be found to pose a risk to them. Respondent's testimony, however, conveyed bothhis desire to reestablish contact with the children and his conviction that the corporal punishmenthe had imposed upon them was justified and appropriate. Since one child is still a minor and thefindings of past neglect could prove significant in any future court proceeding, Family Court didnot err in denying respondent's motion (see Matter of Lewis T., 249 AD2d 646, 647[1998]; see also Matter of James HH., 234 AD2d 783, 783 [1996], lv denied 89NY2d 812 [1997]).
Respondent also argues that some of the evidence presented by petitioner related to incidentswith his children that were not alleged in the petition and petitioner did not conform its pleadingsto its proof. Thus, he contends such evidence cannot support Family Court's finding of neglect.This issue, however, is unpreserved because respondent did not object to the receipt of suchevidence on that ground or otherwise raise the issue during the hearing (see Matter of GerrodBB., 284 AD2d 584, 585-586 [2001]).
Nor can we agree with respondent's contention that Family Court erred in finding that heneglected his children by inflicting excessive corporal punishment. As pertinent here, a neglectedchild includes one "whose physical, mental or emotional condition has been impaired or is inimminent danger of becoming impaired as a result of the failure of his [or her] parent or otherperson legally responsible for his [or her] care to exercise a minimum degree of care. . . in providing the child with proper supervision or guardianship, by unreasonablyinflicting . . . harm, or a substantial risk thereof, including the infliction ofexcessive corporal punishment" (Family Ct Act § 1012 [f] [i] [B]). While the petitionerhas the burden of proving neglect by a preponderance of the evidence (see Family Ct Act§ 1046 [b] [i]; Matter of AaliyahQ., 55 AD3d 969, 970 [2008]; Matter of Chelsea BB., 34 AD3d 1085, 1087 [2006], lvdenied 8 NY3d 806 [2007]), it is not required "to show actual physical injury or impairmentto [the child], as the showing of 'imminent danger' of harm or impairment suffice[s] to establishthat [the] child was a neglected child" (Matter of Collin H., 28 AD3d 806, 809 [2006], quoting Family CtAct § 1012 [f] [i] [B]). It is also well settled that Family Court's determination in neglectproceedings is entitled to great deference since it had the advantage of viewing the witnesses andassessing their demeanor and credibility (see Matter of Michael CC. v Amber CC., 57 AD3d 1037, 1040[2008]; Matter of Aaliyah Q., 55 AD3d at 971).
While we recognize that a parent may use reasonable corporal punishment to promote thediscipline of children (see e.g. Matter of Aaliyah Q., 55 AD3d at 970), there is amplesupport in the testimony of respondent's four younger children for Family Court's finding that the[*3]discipline regularly imposed by respondent here consisted ofscreaming, humiliation and blows with a wooden stick measuring 18 inches bythree-fourths-inch thick. Such physical punishment was inflicted upon all of the children, wasgrossly out of proportion to their offenses, and caused welts, bruising and extreme mentalanguish.
Respondent's younger son testified that being struck by the stick was common punishmentwhen respondent monitored them while they were doing their homework and that, on oneoccasion, respondent caused scratches on this son's neck which respondent then tried to cover upwith powder so that no one would see them. The oldest son testified that in addition to beatinghim with the stick, respondent had punched him in the head with a closed fist, caused him tohave a black eye and bleeding mouth, and elbowed him in his face for errors in the bookkeepingfor his newspaper route. The testimony of respondent's two younger daughters established thathe disciplined them two or three times per week by striking them with the stick, he screamed andpulled their hair, they were physically punished for minor offenses such as not lining up bottlesproperly and making errors in their homework, and they never knew when or what might triggersuch punishment. In addition, there was evidence that the children had been so terrified that theyavoided going home, and that their pervasive fear of respondent contributed to one child'ssuicidal ideation and another's self-mutilation. Inasmuch as the children's testimony, which waslargely corroborated by their mother, established that, from an early age and on a nearly dailybasis, each of the children had sustained bruises and endured fear, humiliation and physical paincaused by respondent's actions, we defer to Family Court's assessment of the witnesses'credibility and conclude that the court's findings of neglect are supported by a preponderance ofthe evidence.
Mercure, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: We note that, upon consent ofthe parties in April 2008, Family Court terminated the order of disposition and vacated therelated order of protection. As a result, any issue as to the relief granted in these orders has beenrendered moot (see Matter of CadejahAA., 33 AD3d 1177 [2006]).