| Matter of Dalia G. (Frank B.) |
| 2015 NY Slip Op 04127 [128 AD3d 821] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Dalia G. Administration for Children'sServices, Respondent; Frank B., Appellant. (Proceeding No. 1.) In the Matter of DariusG. Administration for Children's Services, Respondent; Frank B., Appellant. (ProceedingNo. 2.) In the Matter of Ineisha G. Administration for Children's Services, Respondent;Frank B., Appellant. (Proceeding No. 3.) In the Matter of Frank B., Jr. Administrationfor Children's Services, Respondent; Frank B., Appellant. (Proceeding No. 4.) |
Tennille M. Tatum-Evans, New York, N.Y., for appellant.
Zachary W. Carter, New York, N.Y. (Edward F.X. Hart and Tahirih M. Sadrieh of counsel), for respondent.
Mark Brandys, New York, N.Y., attorney for the children.
Appeal from an order of disposition of the Family Court, Queens County (MarybethS. Richroath, J.), dated October 18, 2013. The order, insofar as appealed from, placed thesubject children in the custody of the Commissioner of Social Services of the City ofNew York until the conclusion of the next permanency hearing, which was to commenceon October 29, 2013. The appeal brings up for review an order of fact-finding of thesame court dated July 11, 2011, which, after a hearing, found that the father neglectedand derivatively neglected the subject children.
Ordered that the appeal from so much of the order of disposition as placed thesubject children in the custody of the Commissioner of Social Services of the City ofNew York until [*2]the conclusion of the nextpermanency hearing, which was to commence on October 29, 2013, is dismissed asacademic, without costs or disbursements; and it is further,
Ordered that the order of disposition is affirmed insofar as reviewed, without costs ordisbursements, and upon review of the order of fact-finding on the appeal from the orderof disposition, the provisions of the order of fact-finding which found that the fatherneglected the child Frank B., Jr., and derivatively neglected the children Darius G.,Ineisha G., and Dalia G., by engaging in acts of domestic violence against the mother inFrank B., Jr.'s presence is vacated, and those branches of the petitions which alleged thatthe father neglected the child Frank B., Jr., and derivatively neglected the children DariusG., Ineisha G., and Dalia G., by engaging in acts of domestic violence against the motherin Frank B., Jr.'s presence are dismissed.
The father is legally responsible for the care of Darius G. and Ineisha G., and he isthe biological parent of Frank B., Jr. (hereinafter Frank), and Dalia G. The petitioner,Administration for Children's Services (hereinafter ACS), filed a petition alleging thatthe father neglected Darius and Ineisha, and derivatively neglected Frank, by perpetratingacts of excessive corporal punishment upon Darius and Ineisha. ACS further alleged thatthe father neglected Frank, and derivatively neglected Darius and Ineisha, by perpetratingacts of domestic violence against the mother in Frank's presence. ACS subsequently filedanother petition with respect to the afterborn child Dalia, alleging derivative neglect. TheFamily Court found that the subject children were neglected and derivatively neglectedas alleged in the petitions, and placed the subject children in the custody of theCommissioner of Social Services until the conclusion of the next permanency hearing,which was to commence on October 29, 2013.
The appeal from so much of the order of disposition as placed the subject children inthe custody of the Commissioner of Social Services until the conclusion of the nextpermanency hearing, which was to commence on October 29, 2013, must be dismissed asacademic, as the period of placement has already expired (see Matter of Stephen Daniel A.[Sandra M.], 122 AD3d 834, 835 [2014]). However, the appeal from the portionof the order of disposition that brings up for review so much of the order of fact-findingdated July 11, 2011, as found that the father neglected and derivatively neglected thesubject children is not academic, since an adjudication of neglect constitutes a permanentand significant stigma that might indirectly affect the father's status in future proceedings(see Matter of Linda F. [JoseF.], 119 AD3d 944, 945 [2014]).
While parents have the right to use reasonable physical force against a child in orderto maintain discipline or to promote the child's welfare, the use of excessive corporalpunishment constitutes neglect (see Family Ct Act § 1012 [f] [i][B]; Matter of Matthew M.[Fatima M.], 109 AD3d 472 [2013]; Matter of Delehia J. [Tameka J.], 93 AD3d 668 [2012]; Matter of Padmine M. [SandraM.], 84 AD3d 806 [2011]). A single incident of excessive corporal punishmentmay suffice to sustain a finding of neglect (Matter of Joseph O'D. [Denise O'D.], 102 AD3d 874, 875[2013]; Matter of Yanni D.[Hope J.], 95 AD3d 1313, 1314 [2012]; Matter of Padmine M. [SandraM.], 84 AD3d at 807). Here, the petitioner established by a preponderance of theevidence that the father inflicted excessive corporal punishment on Darius and Ineisha,when he choked Darius and slammed him to the floor and choked Ineisha (see Matter of Jallah J. [GeorgeJ.], 118 AD3d 1000 [2014]; Matter of Joseph O'D. [Denise O'D.], 102AD3d at 875; Matter of Yanni D. [Hope J.], 95 AD3d at 1314; Matter ofPadmine M. [Sandra M.], 84 AD3d at 807; Matter of Sheneika V., 20 AD3d 541, 542 [2005]).Accordingly, the Family Court properly found that he neglected both Darius and Ineishaon that basis. The evidence also supported the derivative finding of neglect as to thechildren Frank and Dalia, based upon the father's use of excessive corporal punishmentagainst Darius and Ineisha (seeMatter of Jamel T. [Gemayel T.], 120 AD3d 504 [2014]; Matter of Jeremiah I.W. [RogerH.W.], 115 AD3d 967, 969 [2014]; Matter of Jacob P. [Sasha R.], 107 AD3d 719, 720 [2013];Matter of Delehia J. [Tameka J.], 93 AD3d at 669; Matter of Jamarra S. [JessicaS.], 85 AD3d 803, 804 [2011]).
However, the petitioner failed to establish by a preponderance of the evidence thatFrank's physical, mental, or emotional conditions had been impaired or were in imminentdanger of becoming impaired as a result of an incident of domestic violence between thefather and the mother (see generally Family Ct Act § 1046; Nicholson v Scoppetta, 3NY3d 357, 368 [2004]). "While [*3]domesticviolence may be a permissible basis upon which to make a finding of neglect, '[n]ot everychild exposed to domestic violence is at risk of impairment' " (Matter of Chaim R. [Keturah PonceR.], 94 AD3d 1127, 1130 [2012] [citation omitted], quoting Nicholson vScoppetta, 3 NY3d at 375). Here, although there was testimony that the fatherengaged in an act of domestic violence against the mother while Frank, then threemonths old, was somewhere in the room, there is no evidence that the child saw, or wasaware of, what happened, or that his emotional condition was impaired or placed inimminent danger of impairment by it (see Matter of Harper F.-L. [Gary L.], 125 AD3d 652[2015]; Matter of Chaim R. [Keturah Ponce R.], 94 AD3d at 1130; Matter of Todd D., 9 AD3d462, 463 [2004]). Necessarily, then, the Family Court's further finding that the fatherderivatively neglected Darius, Ineisha, and Dalia on this basis was not supported by apreponderance of the evidence (see Matter of Alexander J.S. [David S.], 72 AD3d 829[2010]). We therefore vacate the provisions of the order of fact-finding which found thatthe father neglected Frank, and derivatively neglected Darius, Ineisha, and Dalia, byengaging in acts of domestic violence against the mother in Frank's presence, and dismissthose branches of the petition which alleged that the father neglected Frank, andderivatively neglected Darius, Ineisha, and Dalia, by engaging in acts of domesticviolence against the mother in Frank's presence. Mastro, J.P., Skelos, Dickerson andLaSalle, JJ., concur.