| Matter of Benjamin VV. (Larry VV.) |
| 2012 NY Slip Op 01164 [92 AD3d 1107] |
| February 16, 2012 |
| Appellate Division, Third Department |
| In the Matter of Benjamin VV. and Others, Children Alleged to beNeglected. Otsego County Department of Social Services, Respondent; Larry VV.,Appellant. |
—[*1] Steven E. Ratner, Otsego County Department of Social Services, Cooperstown, forrespondent. Victor B. Carrascoso, Cooperstown, Attorney for the Child. William L. Koslosky, Utica, Attorney for the Child. Jehed F. Diamond, Delhi, Attorney for the Child.
Stein, J. Appeal from an order of the Family Court of Otsego County (Lambert, J.), enteredMarch 14, 2011, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to adjudicate respondent's children to be neglected.
Respondent is the divorced father of Benjamin VV. (born in 1996), Maxwell VV. (born in1998) and Samuel VV. (born in 2001), who were living with him at all relevant times herein.One evening, after Benjamin struck Samuel, Benjamin and respondent became involved in analtercation during which Benjamin sustained an injury to his eye. Petitioner was notified of theincident and thereafter commenced this neglect proceeding against respondent. A fact-findinghearing was held, at which Benjamin did not testify. However, his medical records, supportingdeposition and photographs of his eye were introduced, as was the testimony of two witnesses[*2]who spoke with Benjamin at the hospital the day after thealtercation. Family Court determined that respondent had struck Benjamin in the eye, that thisconduct constituted excessive corporal punishment and that, as a result, Benjamin was aneglected child. The court also found that, because Maxwell and Samuel were present during thealtercation between respondent and Benjamin, they were derivatively neglected. Respondent nowappeals the finding of neglect with respect to all three children.
" '[A] party seeking to establish neglect must show, by a preponderance of the evidence, first,that a child's physical, mental or emotional condition has been impaired or is in imminent dangerof becoming impaired and second, that the actual or threatened harm to the child is aconsequence of the failure of the parent . . . to exercise a minimum degree of care inproviding the child with proper supervision or guardianship' " (Matter of Anthony TT. [Philip TT.], 80AD3d 901, 902 [2011], lv denied 17 NY3d 704 [2011], quoting Nicholson v Scoppetta, 3 NY3d357, 368 [2004]). The infliction of excessive corporal punishment may constitute neglect(see Family Ct Act § 1012 [f] [i] [B]), and a single incident may form the basis forsuch a finding (see Matter of Steven M.[Stephvon O.], 88 AD3d 1099, 1101 [2011]; Matter of Bianca QQ. [Kiyonna SS.], 75 AD3d 679, 681 [2010]).
Here, it is undisputed that Benjamin sustained an eye injury. However, respondent denies thathe intentionally inflicted such injury. Otsego County Sheriff's Investigator Michael Covert, atrained emergency medical technician, testified that Benjamin's injury was consistent with havingbeen punched in the eye and inconsistent with having fallen against furniture. In addition,Benjamin provided a sworn statement in the presence of Covert and an Otsego County childprotective caseworker alleging that respondent hit him in the eye and repeated the allegation tohis mother while they were at the hospital. The hospital record, which was admitted intoevidence, also indicates that Benjamin was punched in the eye by his father. Photographs ofBenjamin's injured eye, taken the day after the altercation, were also introduced into evidence.While Benjamin did not testify in court, his out-of-court statements were sufficientlycorroborated by the physical evidence and Covert's observation to support the finding of neglect(see Matter of Joshua UU. [JessicaXX.—Eugene LL.], 81 AD3d 1096, 1098 [2011]). Given Family Court'sdiscretion to determine the sufficiency of the evidence (see Matter of Sasha R., 24 AD3d 902, 903 [2005]) and accordingdue deference to the court's credibility determinations (see Matter of Brooke KK. [Paul KK.], 69 AD3d 1059, 1061[2010]), we find Family Court's determination of neglect with respect to Benjamin to besupported by the record.
We reach a different conclusion, however, with regard to Family Court's finding ofrespondent's derivative neglect of the other two children. Evidence of neglect of one child"typically may not serve as the sole basis for a finding of neglect [of another child, unless] thenature of the direct [neglect], notably its duration [and] the circumstances surrounding itscommission[,] . . . evidence[s] fundamental flaws in the respondent's understandingof the duties of parenthood" (Matter ofEvelyn B., 30 AD3d 913, 914-915 [2006], lv denied 7 NY3d 713 [2006][internal quotation marks and citations omitted]). Here, testimony suggests that Benjamin has ahistory of conflict with respondent, whereas there was no such evidence regarding the youngertwo children. Nor was there evidence of a longstanding pattern of neglectful conduct towardBenjamin. On this record, we find insufficient evidence to establish that respondent derivativelyneglected Maxwell and Samuel.
Lahtinen, J.P., Spain, Garry and Egan Jr., JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as found that respondent derivativelyneglected Maxwell VV. and Samuel VV., and, as so modified, affirmed.