| Matter of Padmine M. (Sandra M.) |
| 2011 NY Slip Op 03853 [84 AD3d 806] |
| May 3, 2011 |
| Appellate Division, Second Department |
| In the Matter of Padmine M. Administration for Children'sServices, Appellant; Sandra M. et al., Respondents. Steven Banks, Nonparty Appellant.(Proceeding No. 1.) In the Matter of Pretisha M. Administration for Children's Services,Appellant; Sandra M. et al., Respondents. Steven Banks, Nonparty Appellant. (Proceeding No.2.) |
—[*1] Placidus Aguwa, Jamaica, N.Y., for respondent Sahadeo M.
In two related abuse and neglect proceedings pursuant to Family Court Act article 10, theAdministration for Children's Services and the Attorney for the Child for Padmine M. separatelyappeal from an order of the Family Court, Queens County (Tally, J.), dated August 12, 2010,which, after a fact-finding hearing, dismissed the petitions.
Ordered that the appeal by the Attorney for the Child for Padmine M. from so much of theorder as dismissed the petition in proceeding No. 2 is dismissed, as he is not aggrieved by thatportion of the order; and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof dismissingthe petition in proceeding No. 1 insofar as asserted against the father and substituting therefor aprovision finding that the father neglected the child Padmine M.; as so modified, the order isaffirmed, without costs or disbursements, the petition in proceeding No. 1 insofar as assertedagainst the father is reinstated, and the matter is remitted to the Family Court, Queens County,for a dispositional hearing on the petition in proceeding No. 1 insofar as asserted against thefather.[*2]
Parents possess a right to use reasonable physical force todiscipline their children (see Matter ofIsaiah S., 63 AD3d 948, 949 [2009]; see also Penal Law § 35.10 [1]).However, a parent's use of excessive corporal punishment constitutes neglect (see FamilyCt Act § 1012 [f] [i] [B]; Matter of Isaiah S., 63 AD3d at 949). A finding ofneglect must be supported by a preponderance of the evidence (see Family Ct Act§ 1046 [b] [i]; Matter of Tammie Z., 66 NY2d 1 [1985]; Matter of IsaiahS., 63 AD3d at 949; Matter ofDerek J., 56 AD3d 558, 558-559 [2008]). A single incident of excessive corporalpunishment may suffice to sustain a finding of neglect (see Matter of Aaliyah Q., 55 AD3d 969, 970 [2008]). Here, theevidence presented at the fact-finding hearing established that the father inflicted excessivecorporal punishment on his 15-year-old daughter, Padmine, when he hit her several times with apole, causing bruises to her arm and back. Accordingly, the Family Court should have found thathe neglected her (see Matter of StevenL., 28 AD3d 1093 [2006]; Matter of Maria Raquel L., 36 AD3d 425 [2007]).
However, contrary to the petitioner's contention, the evidence did not establish that themother had neglected Padmine, either by inflicting excessive corporal punishment on her (see Matter of Corey Mc. [Tanya Mc.],67 AD3d 1015, 1016 [2009]) or by failing to protect her (cf. Matter of Rayshawn R.,309 AD2d 681, 682 [2003]).
Although Family Court Act § 1046 (a) (i) allows evidence of abuse or neglect of onesibling to be considered in determining whether other children in the household were abused orneglected (see Matter of ShawndelM., 33 AD3d 1006, 1007 [2006]; Matter of Christina Maria C., 89 AD2d 855[1982]), the statute does not mandate a finding of derivative neglect (see Matter of RashedaS., 183 AD2d 770 [1992]). Under the circumstances of this case, the credible evidence doesnot support a finding of derivative neglect with respect to the child Pretisha (see Matter of Andrew B.-L., 43 AD3d1046, 1047-1048 [2007]; Matter of New York City Dept. of Social Servs. v Alex R.,209 AD2d 702, 702-703 [1994]). Rivera, J.P., Dickerson, Hall and Cohen, JJ., concur.