| Matter of Anastasia L.-D. (Ronald D.) |
| 2014 NY Slip Op 00226 [113 AD3d 685] |
| January 15, 2014 |
| Appellate Division, Second Department |
| In the Matter of Anastasia L.-D., an Infant. Administrationfor Children's Services, Appellant; Ronald D., Respondent. (Proceeding No. 1.) In theMatter of Amethyst L.-D., an Infant. Administration for Children's Services, Appellant;Ronald D., Respondent. (Proceeding No. 2.) |
—[*1] Deanna Everett-Johnson, Brooklyn, N.Y., for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Patricia Colella of counsel),attorney for the child Anastasia L.-D. Michael A. Fiechter, Bellmore, N.Y., attorney for the child Amethyst L.-D.
In two related child protective proceedings pursuant to Family Court Act article 10,the petitioner, Administration for Children's Services, appeals from an order of theFamily Court, Kings County (Turbow, J.), dated July 12, 2013, which, after afact-finding hearing, dismissed the petitions.
Ordered that the order is affirmed, without costs or disbursements.
The petitioner, Administration for Children's Services (hereinafter ACS), filedpetitions against the father, alleging that he had neglected the subject children, Anastasiaand Amethyst, through the infliction of excessive corporal punishment upon Anastasiaand his own use of marijuana. The father allegedly hit 14-year-old Anastasia with a beltseveral times when she refused to give him her cell phone upon his request, causingbruises to her body. Also, the children had allegedly observed the father smokingmarijuana on prior occasions. The father testified at a fact-finding hearing that he wasattempting to discipline Anastasia for cutting school by taking away her cell phone, andthat he hit her with the belt when she refused to give him the phone and charged at him.He testified that corporal punishment was not his normal mode of discipline. The fathertestified that he had smoked marijuana, but did not smoke it regularly, and that he neverused or was under the influence of marijuana in the children's presence.[*2]
ACS's contentions are without merit. Parentshave a right to use reasonable physical force against a child in order to maintaindiscipline or to promote the child's welfare. However, the use of excessive corporalpunishment constitutes neglect (see Family Ct Act § 1012 [f] [i] [B]; Matter of Matthew M. [FatimaM.], 109 AD3d 472 [2013]; Matter of Delehia J. [Tameka J.], 93 AD3d 668 [2012]; Matter of Padmine M. [SandraM.], 84 AD3d 806 [2011]; Matter of Alexander J.S. [David S.], 72 AD3d 829 [2010]).The petitioner has the burden of proving neglect by a preponderance of the evidence(see Family Ct Act § 1046 [b] [i]; Matter of Jacob P. [Sasha R.], 107 AD3d 719 [2013]; Matter of Amerriah S. [KadiatouY.], 100 AD3d 1006 [2012]; Matter of Deon S.-G. [Romel S.-G.], 95 AD3d 1340[2012]). Although a single incident of excessive corporal punishment may suffice tosupport a finding of neglect, there are instances where the record will not support such afinding, even where the parent's use of physical force was inappropriate (see Matter of Crystal S. [ElaineS.], 74 AD3d 823 [2010]). Under the circumstances presented here, the FamilyCourt correctly found that ACS failed to establish by a preponderance of the evidencethat the father neglected Anastasia by virtue of his infliction of excessive corporalpunishment upon her. ACS failed to establish that the father intended to hurt Anastasia,or that his conduct demonstrated a pattern of excessive corporal punishment (see Matter of Nicholas W.[Raymond W.], 90 AD3d 1614 [2011]; Matter of Alexander J.S. [David S.], 72 AD3d 829 [2010]).There was insufficient evidence that Anastasia suffered the requisite impairment of herphysical, mental, or emotional well-being to support a finding of neglect (see Matter of Christian O., 51AD3d 402 [2008]). Given Anastasia's age, the circumstances under which thealtercation occurred, and the isolated nature of the father's conduct, the court did not errin dismissing the petitions (see Matter of Rosina W., 297 AD2d 639 [2002];Matter of Amanda E., 279 AD2d 917 [2001]).
Furthermore, the Family Court correctly found that there was no basis for concludingthat the father derivatively neglected Amethyst, who was in the room during the incident,inasmuch as ACS did not prove by a preponderance of the evidence that the fatherneglected Anastasia (see Matterof Alexander J.S. [David S.], 72 AD3d 829 [2010]; Matter of Corey Mc. [TanyaMc.], 67 AD3d 1015 [2009]). The focus of the inquiry required to determinewhether derivative neglect has occurred is whether the evidence of abuse or neglect ofone child indicates a fundamental defect in the parent's understanding of the duties ofparenthood (see Matter ofMonica C.M. [Arnold A.], 107 AD3d 996 [2013]; Matter of Jelani B., 54 AD3d1032 [2008]). Since we have determined that the father did not neglect Anastasia inthe first instance, we conclude that the father's parental judgment was not so impaired asto create a substantial risk of harm to Amethyst, thus rendering Amethyst a neglectedchild within the meaning of Family Court Act § 1012 (f) (i) (B) (see Matter of Jelani B., 54AD3d 1032 [2008]).
The Family Court found that there was no evidence that the father smoked marijuanaother than outside the children's presence, as he testified, and there is no basis in therecord to disturb that court's credibility determination. ACS failed to prove by apreponderance of the evidence that the father's occasional marijuana use outside of thechildren's presence caused impairment, or an imminent danger of impairment, to thephysical, mental, or emotional well-being of the subject children (see Matter of Diamond J. [NakeshaJ.], 102 AD3d 784 [2013]). Imminent danger must be near or impending, notmerely possible (see Matter ofAnna F., 56 AD3d 1197 [2008] [the record failed to establish that children'sphysical, mental, or emotional conditions were in imminent danger of becoming impairedby father's occasional use of drugs or alcohol while children were asleep]). Furthermore,no evidence was elicited as to the duration, frequency, or repetitiveness of the father'smarijuana use (see Matter ofJeffrey M. [Noemi C.], 102 AD3d 608 [2013]; Matter of Anastasia G., 52AD3d 830 [2008]). Balkin, J.P., Chambers, Austin and Roman, JJ., concur.