| Matter of Alexander G. (Tatiana G.) |
| 2012 NY Slip Op 01530 [93 AD3d 904] |
| March 1, 2012 |
| Appellate Division, Third Department |
| In the Matter of Alexander G., a Child Alleged to be Neglected.Delaware County Department of Social Services, Appellant; Tatiana G., Respondent.(Proceeding No. 1.) In the Matter of Alexander G., a Child Alleged to be Neglected. DelawareCounty Department of Social Services, Appellant; Frederick G., Respondent. (Proceeding No.2.) |
—[*1] Tatiana G., Delhi, respondent pro se, and for Frederick G., respondent. Linda L. Cooper, Binghamton, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Delaware County (Connerton, J.),entered December 22, 2010, which dismissed petitioner's applications, in two proceedingspursuant to Family Ct Act article 10, to adjudicate respondents' child to be neglected.
Respondents are the parents of the subject child (born in 2001). In November 2009,petitioner separately commenced these two proceedings alleging that respondent Frederick B.yells at the child and that respondent Tatiana G. punches him as a form of punishment. Thepetitions further alleged that respondents failed to meaningfully respond to or otherwisecooperate with local school officials regarding the child's aggressive classroom behavior.Following a three-day fact-finding hearing,[FN*]Family Court—in a thorough written decision—dismissed the petitions, finding thatpetitioner failed to establish that the child was a neglected child within the meaning of Family CtAct § 1012 (f) and (h). This appeal by petitioner ensued.
"A finding of neglect will be sustained if [the petitioning agency] demonstrated, by apreponderance of evidence, that the child's physical, mental or emotional condition was harmedor is in imminent danger of such harm as the result of the parent's failure to exercise a minimumdegree of care" (Matter of Xavier II., 58 AD3d 898, 899 [2009] [citations omitted]; see Matter of Samuel DD. [MargaretDD.], 81 AD3d 1120, 1121-1122 [2011]). "In determining whether a parent isexercising a minimum degree of care, the parent's behavior must be evaluated objectively, inlight of whether a reasonable and prudent parent [would] have so acted, or failed to act, under thecircumstances then and there existing" (Matter of Samuel DD. [Margaret DD.], 81 AD3dat 1122 [internal quotation marks and citations omitted]). To that end, we will defer "to FamilyCourt's ability to observe the witnesses and assess their credibility, and will not disturb adetermination so long as it is supported by a sound and substantial basis in the record" (Matter of Danielle TT. v Michael UU.,90 AD3d 1103, 1103 [2011] [internal quotation marks and citations omitted]).
Turning first to the allegations of excessive corporal punishment, it indeed is true that "evena single incident of excessive corporal punishment can support a finding of neglect" (Matter of Bianca QQ. [Kiyonna SS.],75 AD3d 679, 681 [2010]; accordMatter of Steven M. [Stephvon O.], 88 AD3d 1099, 1101 [2011]). Here, however, theonly evidence in support of the underlying allegations was the child's statement, which he laterrecanted, and a red mark on the child's chest, the precise appearance and origin of which were notestablished (compare Matter ofKimberly Z. [Jason Z.], 88 AD3d 1181, 1183 [2011] [ample evidence of abuse despitechild's subsequent recantation of her statement]). Under these circumstances, we cannot say thatFamily Court erred in finding insufficient evidence of excessive corporal punishment.
As to respondents' asserted indifference to their child's emotional well-being, the recordmakes painfully clear that the child has serious behavioral problems, as evidenced by anextensive school disciplinary record dating back to his kindergarten days. In this regard,numerous school officials testified regarding the child's escalating and increasingly disturbingbehavior, which over the years has progressed from temper tantrums and verbal outbursts tophysical altercations and threats to harm his fellow students, and as to their efforts to discuss andresolve these issues with respondents. The record makes equally clear that respondents have[*2]been extremely defensive and consistently have rebuffed anyeffort on the part of school officials to obtain counseling for the child or otherwise address hisbehavioral issues—preferring instead to suggest that the problem lies not with their childbut, rather, with his individual teachers and the school's administration. For these reasons, wehave no quarrel with the proposition that respondents have demonstrated a lack of good parentaljudgment. We cannot say, however, on this record, that petitioner met its burden ofdemonstrating that this lack of judgment rises to the level of neglect (cf. Matter of Joseph G., 24 AD3d900, 901 n 2 [2005]; see generallyMatter of Jaden C. [Phillip J.], 90 AD3d 485, 488 [2011]; compare Matter of SamuelDD. [Margaret DD.], 81 AD3d at 1123-1124).
In reaching this conclusion, we acknowledge that petitioner offered the testimony of aclinical psychologist, who, based upon his review of the child's school record, opined that thechild was experiencing emotional stress, that his demonstrated "pattern of aggression andsignificant emotional disturbance" would continue unabated absent evaluation and treatment by amental health professional and that respondents appeared to be "hiding" information and"obstructing" any efforts to assist their child. Such testimony, however, must be taken with agrain of salt, as the psychologist admittedly did not have the opportunity to meet with either thechild or respondents, and his overall opinion as to the child's current and/or future emotionalstate was somewhat vague and conclusory. For these reasons, Family Court quite properlydeclined to accord this testimony substantial weight and, based upon our review of the record, wecannot say that petitioner's proof as a whole was sufficient to support a finding of neglect. Ourconclusion in this regard would be no different even if we were to resolve the evidentiary errorsasserted on appeal in petitioner's favor.
Finally, we cannot say that Family Court abused its broad discretion in denying petitioner'sprehearing request that the child undergo a mental health assessment (see Family Ct Act§ 251; see generally Matter ofBurola v Meek, 64 AD3d 962, 964 [2009])—a request that was opposed by bothrespondents and, notably, the attorney for the child. Petitioner's remaining arguments, to theextent not specifically addressed, have been examined and found to be lacking in merit.
Spain, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Respondents did not appear onthe final day of the hearing and, as they did not request an adjournment, Family Court completedthe hearing in their absence.