| Matter of Isaiah S. |
| 2009 NY Slip Op 05143 [63 AD3d 948] |
| June 16, 2009 |
| Appellate Division, Second Department |
| In the Matter of Isaiah S., a Child Alleged to be Neglected. NassauCounty Department of Social Services, Respondent; Helena S., Appellant. (Proceeding No. 1.) Inthe Matter of Sapphire S., a Child Alleged to be Neglected. Nassau County Department of SocialServices, Respondent; Helena S., Appellant. (Proceeding No. 2.) In the Matter of Elijah S., aChild Alleged to be Neglected. Nassau County Department of Social Services, Respondent;Helena S., Appellant. (Proceeding No. 3.) |
—[*1]
Lorna Bade Goodman, County Attorney, Mineola, N.Y. (Karen Hutson of counsel), forrespondent. James E. Flood, Jr., Massapequa, N.Y., attorney for the children.
In related child protective proceedings pursuant to Family Court Act article 10, the motherappeals from an order of fact-finding and disposition of the Family Court, Nassau County(Marks, J.), dated December 20, 2007, which, after fact-finding and dispositional hearings, foundthat Isaiah S. was a neglected child, and that Sapphire S. and Elijah S. were derivativelyneglected children, within the meaning of Family Court Act § 1012 (f) (i) (B), placed herunder the petitioner's supervision for a period of one year, directed her to comply with a one-yearorder of protection, and released the subject children to the custody of the nonparty father.
Ordered that the appeal from so much of the order of fact-finding and disposition as placedthe mother under the petitioner's supervision and directed that the mother comply with an orderof protection is dismissed as academic, without costs or disbursements, as that portion of theorder has expired by its own terms (see Matter of Daniel W., 56 AD3d 483 [2008];Matter of Matthew C., 300 AD2d 394 [2002]); and it is further,
Ordered that the order of fact-finding and disposition is affirmed insofar as reviewed, [*2]without costs or disbursements.
Although parents have a right to use reasonable physical force "to maintain discipline or topromote the welfare" of their children (Penal Law § 35.10 [1]), the use of "excessivecorporal punishment" constitutes neglect (Family Ct Act § 1012 [f] [i] [B]). In this case,the Family Court's finding of neglect based on the use of excessive corporal punishment wassupported by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i];Matter of Erich J., 22 AD3d 849 [2005]). The evidence demonstrated that the motherstruck the child Isaiah S. with a belt buckle, causing bruising on both arms. Isaiah's out-of-courtstatements that his mother struck him were sufficiently corroborated by the caseworker'sobservation of Isaiah's injuries and the out-of-court statements of Isaiah's siblings Sapphire S.and Elijah S., who told the caseworker that the mother had struck Isaiah with a belt and otherobjects (see Family Ct Act § 1046 [a] [vi]; Matter of Nicholas L., 50AD3d 1141 [2008]; Matter of Joshua B., 28 AD3d 759, 761 [2006]). The Family Court'sdetermination that the mother lacked credibility when she testified that she never hit her childrenis entitled to deference (see Matter of Erich J., 22 AD3d at 849) and, moreover, is fullysupported by the record. Thus, the evidence was sufficient to support the Family Court's findingof neglect as to Isaiah, as well as its finding that Sapphire and Elijah were derivatively neglected(see Matter of Daniella HH., 236 AD2d 715, 716 [1997]). Prudenti, P.J., Miller, Eng andBelen, JJ., concur.