| Matter of Steven M. (Stephvon O.) |
| 2011 NY Slip Op 07326 [88 AD3d 1099] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Steven M. and Another, Children Alleged to beAbused and/or Neglected. Columbia County Department of Social Services, Respondent;Stephvon O., Appellant. |
—[*1] Sandra M. Colatosti, Albany, for appellant. Megan Mercy, Columbia County Department of Social Services, Hudson (James A. Carlucci,Hudson, of counsel), for respondent. Alexander W. Bloomstein, Hillsdale, attorney for the child.
Egan Jr., J. Appeal from an order of the Supreme Court (Czajka, J.), entered December 2,2010 in Columbia County, which partially granted petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to adjudicate the subject children to be abused and/orneglected.
Respondent is the biological father of, among others, Steven M. (born in 2007). After thechild returned from a visitation with respondent in January 2010, Steven's mother noticed bruiseson his back and buttocks and notified her caseworker. Petitioner thereafter commenced thisproceeding against respondent alleging that he abused and/or neglected Steven and derivativelyneglected Jasheem N., the son of his then roommate. Following the removal of this proceedingfrom Family Court to the Integrated Domestic Violence Part of Supreme Court, a combinedbench trial ensued, at which Supreme Court heard proof regarding both the underlying [*2]petition and the related criminal charges. At the conclusion thereof,Supreme Court found, among other things, that respondent had abused and/or neglected Steven,but dismissed the petition as to Jasheem, concluding that the proof adduced was insufficient tosupport a finding of derivative neglect.[FN1]As to disposition, Supreme Court imposed a one-year no-contact order of protection in favor ofSteven and denied respondent's request for visitation until such time as he made a reasonableeffort to participate in the services and programs ordered by the court. Respondent now appeals.
Preliminarily, although respondent's notice of appeal predates Supreme Court's order and,therefore, technically is premature, we will exercise our discretion and treat it as valid (see Matter of Joshua UU. [JessicaXX.—Eugene LL.], 81 AD3d 1096, 1097 n 2 [2011]). Turning to the merits, toestablish a prima facie case of abuse or neglect, the petitioning agency must show, by apreponderance of the evidence (seeMatter of Alexander F. [Raddad I.], 82 AD3d 1514, 1515 [2011]; Matter of Jordan XX., 53 AD3d740, 740 [2008]), that the child in question sustained the type of injury that ordinarily wouldnot occur absent an act or omission by the parent or person otherwise legally responsible for hisor her care and, further, that such individual was the caretaker of the child at the time theunderlying injury occurred (see Family Ct Act § 1046 [a] [ii]; Matter of PhilipM., 82 NY2d 238, 243 [1993]; Matter of Brooke OO. [Lawrence OO.], 74 AD3d 1429, 1430[2010], lv denied 15 NY3d 706 [2010]).
Here, Steven's mother testified that she observed bruises and welts on the child's back andbuttocks after he returned from a weekend visitation with respondent, and photographs of thechild's injuries, as well as the medical records documenting his subsequent visit to a localemergency room, were received into evidence at the hearing. The mother further testified thatwhen she asked respondent how the child had sustained his injuries, respondent admitted that hestruck Steven with a leather belt because the child was not potty trained.
Although we agree with respondent that petitioner failed to make out a prima facie case ofabuse (see Family Ct Act § 1012 [e] [i]),[FN2]the foregoing proof was, in our view, sufficient to [*3]establish aprima facie case of neglect (see Family Ct Act § 1012 [f] [i] [B]), thereby imposingupon respondent the burden of providing "a reasonable and adequate explanation of how thechild sustained the injury" (Matter of Brooke OO. [Lawrence OO.], 74 AD3d at 1430; see Matter of Miranda HH. [ThomasHH.], 80 AD3d 896, 897 [2011]). To that end, respondent denied hitting the child,contended that he did not even see the child on the weekend in question and supplied certain"alibi" witnesses who testified that they did not see respondent with Steven during the relevanttime period. Such testimony, however, presented a credibility issue for Supreme Court to resolve(see Matter of Brooke II., 45 AD3d1234, 1234-1235 [2007]; Matter ofCollin H., 28 AD3d 806, 808 [2006]) and, inasmuch as Supreme Court had theadvantage of observing the various witnesses firsthand, we are not inclined to disturb itsdetermination in this regard. "[E]ven a single incident of excessive corporal punishment cansupport a finding of neglect" (Matter ofBianca QQ. [Kiyonna SS.], 75 AD3d 679, 681 [2010]; Matter of Omavi A. [Jaimyce A.], 68AD3d 1463, 1464 [2009]; Matter ofJustin O., 28 AD3d 877, 878 [2006]) and, based upon our review of the record as awhole, we are satisfied that the finding of neglect is supported by a preponderance of the credibleevidence.
As to disposition, Supreme Court imposed a one-year order of protection barring respondentfrom having any contact with his child and expressly conditioned respondent's right to futurevisitation upon a showing that he had made a reasonable attempt to engage in various programsand services. Even then, the court directed, such visitation would be afforded only if the child'scounselor did not conclude that it would be contrary to the child's best interest.[FN3]Supreme Court cannot, however, as it did here, delegate its best interest inquiry to a third party(see Gadomski v Gadomski, 256 AD2d 675, 677 [1998]). Additionally, the case lawmakes clear that "although a court may direct a party . . . to seek counseling as acomponent of the court's custody or visitation order, [it] does not have the authority to order thata party undergo counseling or therapy before visitation will be allowed" (Matter of Dennisonv Short, 229 AD2d 676, 677 [1996] [internal quotation marks and citations omitted]; see Matter of Saggese v Steinmetz, 83AD3d 1144, 1145 [2011], lv denied 17 NY3d 708 [2011]; Matter of Marchand v Nazzaro, 55AD3d 968, 969 [2008]; Gadomski v Gadomski, 256 AD2d at 677), which isprecisely what occurred in this matter (compare Posporelis v Posporelis, 41 AD3d 986, 991-992 [2007]).Finally, while we in no way condone respondent's behavior toward his son, the record before usdoes not contain "compelling reasons and substantial evidence" (Matter of Paige WW. [Charles XX.],71 AD3d 1200, 1204 [2010] [internal quotation marks and citations omitted]) warranting the"drastic remedy" (Matter of Robert TT. v Carol UU., 300 AD2d 920, 920 [2002]) ofdenying respondent any visitation with Steven—particularly when respondent wasamenable to having such visitation supervised by petitioner. For these reasons, this matter isremitted to Supreme Court for a new hearing on the issue of visitation.[*4]
Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ.,concur. Ordered that the order is modified, on the law, without costs, by reversing so muchthereof as adjudicated Steven M. to be an abused child and ordered that respondent have novisitation with Steven M.; Steven M. is adjudicated to be a neglected child and matter remitted tothe Supreme Court for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.
Footnote 1: It is not entirely clear fromeither Supreme Court's bench decision or the resulting order whether the court deemed Steven tobe an abused child (see Family Ct Act § 1012 [e]) or a neglected child (seeFamily Ct Act § 1012 [f]). For the reasons that follow, however, any discrepancy in thisregard need not detain us.
Footnote 2: Petitioner plainly establishedthat respondent struck Steven, but it did not demonstrate that the injuries respondent inflicted"cause[d] or create[d] a substantial risk of death, or serious or protracted disfigurement, orprotracted impairment of physical or emotional health or protracted loss or impairment of thefunction of any bodily organ" (Family Ct Act § 1012 [e] [i]; compare Matter of Keara MM. [NaomiMM.], 84 AD3d 1442 [2011] [six-week-old child sustained numerous broken bones];Matter of Alexander F. [Raddad I.], 82 AD3d at 1515 [child sustained bilateral subduralhematomas, bilateral brain infarctions, substantial loss of brain tissue and several rib fractures];Matter of Brooke OO. [Lawrence OO.], 74 AD3d at 1430 [child sustained extensivefacial burns after being scalded with a pot of water]). Hence, to the extent that Supreme Courtfound that Steven was an abused child, such finding cannot stand.
Footnote 3: Although the order of protectionexpired by its own terms on September 29, 2011, respondent's challenge to the overalldisposition fashioned by Supreme Court is not moot as it encompasses arguments beyond themere issuance of the order of protection.