| Matter of Corey Mc. (Tanya Mc.) |
| 2009 NY Slip Op 08825 [67 AD3d 1015] |
| November 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of Corey Mc., an Infant. Administration forChildren's Services, Respondent; Tanya Mc., Appellant. (Proceeding No. 1.) In the Matter ofTyler Mc., an Infant. Administration for Children's Services, Respondent; Tanya Mc., Appellant.(Proceeding No. 2.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and SusanB. Eisner of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler, Claire V. Merkine, and Eileen Murphyof counsel), attorney for the children.
In two related child protective proceedings pursuant to Family Court Act article 10, themother appeals from an order of disposition of the Family Court, Queens County(Richardson-Mendelson, J.), dated September 18, 2008, which, upon a fact-finding order of thesame court dated June 4, 2007, made after a hearing, finding that she had neglected the childCorey Mc., and derivatively neglected the child Tyler Mc., placed the children in the custody ofthe Commissioner of Social Services of Queens County until the completion of the nextpermanency hearing. The appeal from the order of disposition brings up for review thefact-finding order.
Ordered that the order of disposition is reversed, on the law, without costs or disbursements,the fact-finding order is vacated, the petition is denied, and the proceeding is dismissed.
The finding of neglect in this case is based on a single physical confrontation between themother and her adolescent son, Corey Mc. (hereinafter the son), who at that time was 15 yearsold and 5 feet 10 inches tall. The evidence in the record established that the mother and the sonhad a troubled relationship. In this particular incident, the mother confronted the son over whatshe believed to be a specific instance of inconsiderate behavior, after which she left his room andclosed the door. The son came out of his room and directed a stream of profanity-laced invectiveat the mother, who attempted several times to withdraw from the confrontation. When the soncontinued his verbal abuse, the mother either punched or slapped him in the face. The incidentescalated further, and the son knocked his mother down and continued to curse at her; she got upand hit him on the face with the heel of her shoe, bloodying his nose. The mother thenimmediately called the police to seek medical attention for the son. The Family Court found thatthe mother had neglected the son by hitting him with her shoe, and derivatively neglected [*2]her then 12-year-old daughter, Tyler Mc., and the Family Courtplaced the children in the custody of the Commissioner of Social Services of Queens County.The mother contends that the Family Court's finding of neglect with respect to the son was notsupported by a preponderance of the evidence as required by Family Court Act § 1046 (b)(i). The attorney for the children, who opposed the finding of neglect in the Family Court, agreeswith the mother's position, and so do we.
A "neglected child" is defined as one whose "physical, mental or emotional condition hasbeen impaired or is in imminent danger of becoming impaired as a result of the failure of hisparent or other person legally responsible for his care to exercise a minimum degree of care. . . in providing the child with proper supervision or guardianship, by unreasonablyinflicting or allowing to be inflicted harm, or a substantial risk thereof" (Family Ct Act §1012 [f] [i] [B]). Although a single incident may sometimes suffice to sustain a finding ofneglect (see Matter of Rachel H.,60 AD3d 1060, 1061 [2009]; Matter of Aaliyah Q., 55 AD3d 969, 970 [2008]; Matter ofSamuel Y., 270 AD2d 531, 532 [2000]), the record does not support such a finding here.Given the age and size of the son, the provocation, and the dynamics of the incident, the mother'sacts, which, as she readily acknowledged, were not an appropriate response to her son's conduct,did not constitute neglect (see Matter ofChanika B., 60 AD3d 671, 672 [2009]; Matter of John O., 42 AD3d 687, 687-688 [2007]; Matter ofAnthony PP., 291 AD2d 687, 688 [2002]; Matter of Amanda E., 279 AD2d 917,918-919 [2001]; Matter of Luke M., 193 AD2d 446, 446-447 [1993]). Necessarily, then,the Family Court's further finding that the child Tyler Mc., who witnessed the incident, wasderivatively neglected, likewise was not supported by a preponderance of the evidence.
Accordingly, the petition must be denied and the proceeding dismissed. Rivera, J.P., Fisher,Belen and Austin, JJ., concur.