| Matter of Laequise P. (Brian C.) |
| 2014 NY Slip Op 05342 [119 AD3d 801] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 In the Matter of Laequise P. Suffolk CountyDepartment of Social Services, Respondent; Brian C.,Appellant. |
Robert C. Mitchell, Central Islip, N.Y. (Daniel R. Howard of counsel), forappellant.
Dennis M. Brown, County Attorney, Central Islip, N.Y. (Christina E. Farrell ofcounsel), for respondent.
Glenn Gucciardo, Northport, N.Y., attorney for the child.
In a child neglect proceeding pursuant to Family Court Act article 10, the fatherappeals from an order of fact-finding and disposition of the Family Court, SuffolkCounty (Hoffmann, J.), dated March 18, 2013, which, after a fact-finding hearing, interalia, found that he neglected the subject child.
Ordered that the order of fact-finding and disposition is reversed, on the facts,without costs or disbursements, the petition is denied, and the proceeding isdismissed.
On October 3, 2012, the Suffolk County Department of Social Services (hereinafterthe petitioner) commenced a proceeding pursuant to Family Court Act§ 1012 against the father, alleging that he had neglected the subject child,Laequise P., who was then eight years old, by inflicting excessive corporal punishment.The father allegedly spanked the child with an open hand as punishment for cursingwhile they were attending a party at a friend's home. Further, it was alleged that after thefather and the child returned home from the party, the father repeatedly struck the childwith a belt on the buttocks, legs, and arms. At the fact-finding hearing, the father testifiedthat while he spanked the child at the party after hearing him curse at an adult, he did notstrike the child with a belt when they returned home.
Pursuant to Family Court Act § 1046 (b) (i), the petitioner has theburden of proving neglect by a preponderance of the evidence (see Matter of Jacob P. [SashaR.], 107 AD3d 719, 720 [2013]). "Although parents have a right to usereasonable physical force against a child in order to maintain discipline or to promote thechild's welfare, the use of excessive corporal punishment constitutes neglect" (Matter of Matthew M. [FatimaM.], 109 AD3d 472, 473 [2013]). We find that the Family Court's finding ofneglect was not supported by a preponderance of the credible evidence (seeFamily Ct Act § 1012 [f] [i] [B]). The father's open-handed spanking of thechild as a form of discipline after he heard the [*2]childcurse at an adult was a reasonable use of force and, under the circumstances presentedhere, did not constitute excessive corporal punishment (see Matter of Chanika B., 60AD3d 671, 672 [2009]). Regarding the allegation that the father struck the childwith a belt after they returned home from the party, the evidence adduced at thefact-finding hearing was insufficient to prove that allegation by a preponderance of theevidence, and thus, was insufficient to support a finding of neglect on that basis (see Matter of Anastasia L.-D.[Ronald D.], 113 AD3d 685 [2014]).
Accordingly, the petition must be denied and the proceeding dismissed. Dillon, J.P.,Hall, Cohen and Hinds-Radix, JJ., concur.