| Matter of Dylan G. (Victor M.) |
| 2014 NY Slip Op 05333 [119 AD3d 786] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 In the Matter of Dylan G. Administration forChildren's Services, Respondent; Victor M., Jr., Appellant. (Proceeding No. 1.) In theMatter of Tayina I.M. Administration for Children's Services, Respondent; Victor M., Jr.,Appellant. (Proceeding No. 2.) |
Zvi Ostrin, New York, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F. X. Hart andDrake A. Colley of counsel), for petitioner-respondent.
Joel Borenstein, Brooklyn, N.Y., attorney for the child Dylan G.
Paul B. Guttenberg, Syosset, N.Y., attorney for the child Tayina I. M.
In related child protective proceedings pursuant to Family Court Act article 10, thefather appeals from (1) an order of fact-finding of the Family Court, Queens County(Salinitro, J.), dated March 13, 2012, which, after a hearing, found that he sexuallyabused the child Tayina I.M. and neglected the children Tayina I.M. and Dylan G., and(2) an order of disposition of the same court dated June 25, 2012, which, upon the orderof fact-finding, and after a dispositional hearing, released the children to thenonrespondent mother.
Ordered that the appeal from the order of fact-finding is dismissed, without costs ordisbursements, as the fact-finding order was superseded by the order of disposition and isbrought up for review on the appeal from the order of disposition; and it is further,
Ordered that the order of disposition is affirmed, without costs ordisbursements.
[*2] After a fact-findinghearing pursuant to Family Court Act article 10, any determination that a child is abusedor neglected must be based on a preponderance of the evidence (see Family CtAct § 1046 [b]; Matter of Nicole V., 71 NY2d 112, 117 [1987];Matter of Dareth O., 304 AD2d 667, 668 [2003]). The Family Court's assessmentof the credibility of witnesses is entitled to considerable deference (see Matter ofIrene O., 38 NY2d 776 [1975]; see also Matter of Nurridin B. [Louis J.], 116 AD3d 770[2014]; Matter of Jada A.[Robert W.], 116 AD3d 769 [2014]).
Family Court Act § 1012 (e) (iii) provides that an abused child is "achild less than eighteen years of age whose parent or other person legally responsible forhis care . . . commits, or allows to be committed an offense against suchchild defined in article one hundred thirty of the penal law." Penal Law§ 130.55 provides that "[a] person is guilty of sexual abuse in the thirddegree when he or she subjects another person to sexual contact without the latter'sconsent."
The Family Court's finding that the appellant sexually abused his daughter TayinaI.M. was supported by a preponderance of the evidence (see Family Ct Act§§ 1012 [e] [iii]; 1046 [b] [i]; Penal Law § 130.55; Matter of Joshua P. [David J.],111 AD3d 836 [2013]). In light of the conflicting testimony presented at thefact-finding hearing, the factual findings of the Family Court turned largely on itsassessment of witnesses' credibility. Here, there is no basis in the record to disturb theFamily Court's assessment of the witnesses' credibility.
Parents possess a right to use reasonable physical force to discipline their children(see Matter of Isaiah S., 63AD3d 948, 949 [2009]; see also Penal Law § 35.10 [1]).However, a parent's use of excessive corporal punishment constitutes neglect (seeFamily Ct Act § 1012 [f] [i] [B]; Matter of Isaiah S., 63 AD3dat 949), and neglect may be established by even a single incident of excessive corporalpunishment (see Matter of Nurridin B. [Louis J.], 116 AD3d at 770; Matter of Padmine M. [SandraM.], 84 AD3d 806, 807 [2011]; Matter of Rachel H., 60 AD3d 1060 [2009]).
Here, contrary to the appellant's contention, the Family Court's finding of neglect ofthe children based on excessive corporal punishment was supported by a preponderanceof the evidence (see Family Ct Act § 1012 [f] [i] [B]; Matter of Nurridin B. [LouisJ.], 116 AD3d 770 [2014]; Matter of Yanni D. [Hope J.], 95 AD3d 1313, 1314 [2012];Matter of James S. [KathleenS.], 88 AD3d 1006 [2011]; Matter of Padmine M. [Sandra M.], 84AD3d at 806). Balkin, J.P., Leventhal, Maltese and LaSalle, JJ., concur.