| Matter of Alexander J.S. (David S.) |
| 2010 NY Slip Op 03133 [72 AD3d 829] |
| April 13, 2010 |
| Appellate Division, Second Department |
| In the Matter of Alexander J.S., a Child Alleged to be Neglected.Suffolk County Department of Social Services, Respondent; David S., Appellant. (ProceedingNo. 1.) In the Matter of Juliet C.S., a Child Alleged to be Neglected. Suffolk County Departmentof Social Services, Respondent; David S., Appellant. (Proceeding No.2.) |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (Randall J. Ratje of counsel), forrespondent. Linda S. Morrison, Commack, N.Y. , attorney for the children.
In two related child protective proceedings pursuant to Family Court Act article 10, thefather appeals from a fact-finding order of the Family Court, Suffolk County (Whelan, J.), datedAugust 18, 2009, which, after a hearing, found that he neglected Juliet S. and derivativelyneglected Alexander S.
Ordered that the fact-finding order is reversed, on the law, without costs or disbursements,the petitions are denied, and the proceedings are dismissed.
Parents possess a right to use reasonable physical force to discipline their children (see Matter of Isaiah S., 63 AD3d948, 949 [2009]; see also Penal Law § 35.10 [1]). However, a parent's use ofexcessive corporal punishment constitutes neglect (see Family Ct Act § 1012 [f][i] [B]; Matter of Isaiah S., 63 AD3d at 949). A finding of neglect must be supported bya preponderance of the evidence (see Family Ct Act § 1046 [b] [i]; Matter ofIsaiah S., 63 AD3d at 949; Matterof Derek J., 56 AD3d 558, 558-559 [2008]; Matter of Erich J., 22 AD3d 849, 850 [2005]).
Here, the evidence presented at the fact-finding hearing established that the father pulled onhis daughter's shirt when his daughter failed to follow his instructions, causing her to fall downonto the floor. The evidence also established that he then spanked her on the buttocks and hit heron her arm with an open hand. Although the evidence established that her wrist was injured as aresult of the fall, there was no evidence that he intended to injure her, or engaged in a pattern ofusing excessive force to discipline her. Although a single incident may suffice to support afinding of neglect (see Matter of Rachel H., 60 AD3d [*2]1060, 1061 [2009]), under the circumstances, the Family Court'sfinding that the father neglected his daughter by using excessive corporal punishment was notsupported by a preponderance of the evidence (see Matter of Chanika B., 60 AD3d 671, 671-672 [2009];Matter of Suffolk County Dept. of Social Servs. v Diane J., 222 AD2d 439 [1995]; cf. Matter of Reannie D., 2 AD3d851, 852 [2003]; Matter ofStephanie K., 1 AD3d 939, 940 [2003]; Matter of Amanda E., 279 AD2d 917,918-919 [2001]). Necessarily, then, the Family Court's further finding that the father derivativelyneglected his son, who was present for much of the incident, was not supported by apreponderance of the evidence (seeMatter of Corey Mc. [Tanya Mc.], 67 AD3d 1015, 1016-1017 [2009]). Accordingly, theFamily Court should have denied the petitions and dismissed the proceedings.
The father's remaining contentions either have been rendered academic in light of ourdetermination or are without merit. Fisher, J.P., Covello, Lott and Sgroi, JJ., concur.