| Matter of Chanyae S. (Rena W.) |
| 2011 NY Slip Op 02683 [82 AD3d 1247] |
| March 29, 2011 |
| Appellate Division, Second Department |
| In the Matter of Chanyae S. Administration for Children's Services,Appellant; Rena W. et al., Respondents. Steven Banks, Nonparty Appellant. (And OtherTitles.) |
—[*1] Steven Banks, New York, N.Y. (Tamara A. Steckler, Louise Feld, and Judith Waksberg ofcounsel), for nonparty appellant.
In a child protective proceeding pursuant to Family Court Act article 10, the Attorney for theChild and the petitioner, Administration for Children's Services, separately appeal, as limited bytheir respective briefs, from so much of an order of the Family Court, Queens County (Tally, J.),dated July 1, 2009, as, after a hearing, dismissed so much of the petition as alleged that the childwas neglected by the father.
Ordered that the order is reversed insofar as appealed from, on the law and the facts, withoutcosts or disbursements, and so much of the petition as alleged that the child was neglected by thefather is granted.
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]; see Matterof Isaiah S., 63 AD3d 948, 949 [2009]). While the credibility findings of a hearing court areaccorded deference (see Matter of Irene O., 38 NY2d 776, 777 [1975]; Matter ofAndrew B. [Deborah B.], 73 AD3d 1036 [2010]), we are free to make our own credibilityassessments and, where proper, make a finding of neglect based upon the record before us(see Matter of Samuel D.-C., 40 AD3d 853 [2007]; Matter of Peter R., 8 AD3d576 [2004]). Upon review of this record, we conclude that the petitioner satisfactorilydemonstrated by a preponderance of the evidence that Chanyae S. was a neglected child(see Family Ct Act § 1046 [b] [i]; Matter of Sheneika V., 20 AD3d 541,542 [2005]). The record clearly shows that the father choked the child in response to a disputeover whether the child would babysit her younger siblings. Accordingly, the Family Courtimproperly dismissed the petition.
We note that since the child is now over 18 years old, it is unnecessary to remit the matter fora dispositional hearing (see Matter of Daniel W., 37 AD3d 842, 843 [2007]; Matter ofJohn S., 175 AD2d 207, 208 [1991]). [*2]Covello, J.P., Hall,Lott and Cohen, JJ., concur.
Motion by the nonparty appellant on an appeal from an order of the Family Court, QueensCounty, dated July 1, 2009, to strike the brief filed by Rena W. By decision and order on motionof this Court dated January 20, 2011, the motion was held in abeyance and referred to theJustices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers submitted in support of the motion and the papers submitted in oppositionthereto, and upon the argument of the appeal, it is,
Ordered that the motion is granted, and the brief filed by Rena W. is stricken and has notbeen considered on the appeal. Covello, J.P., Hall, Lott and Cohen, JJ., concur.