| Matter of Christy C. (Jeffrey C.) |
| 2010 NY Slip Op 05270 [74 AD3d 561] |
| June 15, 2010 |
| Appellate Division, First Department |
| In the Matter of Christy C. and Others, Children Alleged to beNeglected. Jeffrey C. et al., Appellants; Administration for Children's Services,Respondent. |
—[*1] George E. Reed, Jr., White Plains, for Katrina T., appellant. Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), forrespondent. Randall S. Carmel, Syosset, Law Guardian.
Order of disposition, Family Court, Bronx County (Monica Drinane, J.), entered on or aboutMay 19, 2009, which, upon findings of neglect, inter alia, released the subject children to thecustody of the mother with 12 months of supervision by the Administration for Children'sServices, on conditions that the mother and children receive family counseling for domesticviolence, that the father receive anger management therapy, enroll in a batterer's program and bereferred for psychiatric evaluation and for family counseling, and entered a final order ofprotection against the father for 12 months with respect to the children, allowing only supervisedvisits, unanimously reversed, on the law and the facts, without costs, the findings of neglectvacated and the petitions dismissed.
We find that the record does not support the finding of neglect inasmuch as a preponderanceof the evidence did not demonstrate that the children's physical, mental or emotional conditionhas been impaired or is in danger of becoming impaired, or that the actual or threatened harm tothe children is a consequence of the failure of the parents to exercise a minimal degree of care inproviding the children with proper supervision or guardianship (see Nicholson v Scoppetta, 3 NY3d357, 368 [2004]; Family Ct Act § 1012 [f]; § 1046 [b] [i]). While incidents ofdomestic violence can provide a permissible basis upon which to make a finding of neglect(see Matter of [*2]Daphne G., 308 AD2d 132, 135[2003]; Matter of Deandre T., 253 AD2d 497, 498 [1998]), here, the hearing testimonypertained to a single act of domestic violence which occurred outside the presence of thechildren and thus was insufficient to establish that the children's physical, mental or emotionalcondition was in imminent danger of becoming impaired (see Matter of Davin G., 11 AD3d 462, 462-463 [2004]; Matterof Daphne G., 308 AD2d at 134-135).
What the hearing court characterized as a "repeated atmosphere of domestic violence" wasbased upon improper reliance on hearsay statements by respondent mother and respondent fathercontained in police domestic incident reports that did not fall within another exception to thehearsay rule (see Matter of ImaniB., 27 AD3d 645 [2006]; see generally Matter of Leon RR., 48 NY2d 117, 122[1979]), and the police reports were inadmissible since the information contained in the reportscame from witnesses not engaged in the police business in the course of which the memorandumwas made (see Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 396[2003], lv dismissed and denied 100 NY2d 636 [2003]; Yeargans v Yeargans, 24AD2d 280, 282 [1965]).
Furthermore, a preponderance of the evidence did not support a finding of neglect based onexcessive corporal punishment on one of the subject children, and derivatively on the othersubject children. The father acknowledged that he "popped" or "tapped" the child, but there wasno basis to conclude that the force he used was excessive or that it went beyond his common-lawright to use reasonable force (see Matterof Peter G., 6 AD3d 201, 206 [2004], appeal dismissed 3 NY3d 655 [2004];Penal Law § 35.10 [1]), particularly since the child sustained no injury and was laughingafter his father hit him, his brother told the caseworker that the child was in good spirits afterbeing hit, and the case based on the child's initial report to the school guidance counselor wasclosed as unsubstantiated. Concur—Andrias, J.P., Saxe, Sweeny, Nardelli and Catterson,JJ.
Motion to strike portions of brief denied.