RUTH C. BALKIN

Jeffrey D. Friedlander, Acting Corporation Counsel, New York, N.Y. (Leonard Koerner and Ronald E. Sternberg of counsel), for appellant. 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.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

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 the Family Court, Kings County (Turbow, J.), dated July 12, 2013, which, after a fact-finding hearing, dismissed the petitions.

ORDERED that the order is affirmed, without costs or disbursements.

The petitioner, Administration for Children's Services (hereinafter ACS), filed petitions against the father, alleging that he had neglected the subject children, Anastasiaand Amethyst, through the infliction of excessive corporal punishment upon Anastasia and his own use of marijuana. The father allegedly hit 14–year–old Anastasia with a belt several times when she refused to give him her cell phone upon his request, causing bruises to her body. Also, the children had allegedly observed the father smoking marijuana on prior occasions. The father testified at a fact-finding hearing that he was attempting to discipline Anastasia for cutting school by taking away her cell phone, and that 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 father testified that he had smoked marijuana, but did not smoke it regularly, and that he never used or was under the influence of marijuana in the children's presence.

ACS's contentions are without merit. Parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child's welfare. However, the use of excessive corporal punishment constitutes neglect ( seeFamily Ct. Act § 1012[f][i] [B]; Matter of Matthew M. [ Fatima M.], 109 A.D.3d 472, 970 N.Y.S.2d 271; Matter of Delehia J. [ Tameka J.], 93 A.D.3d 668, 939 N.Y.S.2d 570; Matter of Padmine M. [ Sandra M.], 84 A.D.3d 806, 922 N.Y.S.2d 527; Matter of Alexander J.S. [ David S.], 72 A.D.3d 829, 899 N.Y.S.2d 281). The petitioner has the burden of proving neglect by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i]; Matter of Jacob P. [ Sasha R.], 107 A.D.3d 719, 967 N.Y.S.2d 89; Matter of Amerriah S. [ Kadiatou Y.], 100 A.D.3d 1006, 955 N.Y.S.2d 147; Matter of Deon S.–G. [ Romel S.–G.], 95 A.D.3d 1340, 944 N.Y.S.2d 899). Although a single incident of excessive corporal punishment may suffice to support a finding of neglect, there are instances where the record will not support such a finding, even where the parent's use of physical force was inappropriate ( see Matter of Crystal S. [ Elaine S.], 74 A.D.3d 823, 902 N.Y.S.2d 623). Under the circumstances presented here, the Family Court correctly found that ACS failed to establish by a preponderance of the evidence that the father neglected Anastasia by virtue of his infliction of excessive corporal punishment 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 A.D.3d 1614, 936 N.Y.S.2d 450; Matter of Alexander J.S. [ David S.], 72 A.D.3d 829, 899 N.Y.S.2d 281). There was insufficient evidence that Anastasia suffered the requisite impairment of her physical, mental, or emotional well-being to support a finding of neglect ( see Matter of Christian O., 51 A.D.3d 402, 856 N.Y.S.2d 612). Given Anastasia's age, the circumstances under which the altercation occurred, and the isolated nature of the father's conduct, the court did not err in dismissing the petitions ( see Matter of Rosina W., 297 A.D.2d 639, 747 N.Y.S.2d 45; Matter of Amanda E., 279 A.D.2d 917, 719 N.Y.S.2d 763).

Furthermore, the Family Court correctly found that there was no basis for concluding that 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 father neglected Anastasia ( see Matter of Alexander J.S. [ David S.], 72 A.D.3d 829, 899 N.Y.S.2d 281; Matter of Corey Mc. [ Tanya Mc.], 67 A.D.3d 1015, 889 N.Y.S.2d 647). The focus of the inquiry required to determine whether derivative neglect has occurred is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent'sunderstanding of the duties of parenthood ( see Matter of Monica C.M. [ Arnold A.], 107 A.D.3d 996, 968 N.Y.S.2d 143; Matter of Jelani B., 54 A.D.3d 1032, 865 N.Y.S.2d 114). Since we have determined that the father did not neglect Anastasia in the first instance, we conclude that the father's parental judgment was not so impaired as to create a substantial risk of harm to Amethyst, thus rendering Amethyst a neglected child within the meaning of Family Court Act § 1012(f)(i)(B) ( see Matter of Jelani B., 54 A.D.3d 1032, 865 N.Y.S.2d 114).

The Family Court found that there was no evidence that the father smoked marijuana other than outside the children's presence, as he testified, and there is no basis in the record to disturb that court's credibility determination. ACS failed to prove by a preponderance of the evidence that the father's occasional marijuana use outside of the children's presence caused impairment, or an imminent danger of impairment, to the physical, mental, or emotional well-being of the subject children ( see Matter of Diamond J. [ Nakesha J.], 102 A.D.3d 784, 957 N.Y.S.2d 887). Imminent danger must be near or impending, not merely possible ( see Matter of Anna F., 56 A.D.3d 1197, 868 N.Y.S.2d 442 [the record failed to establish that children's physical, mental, or emotional conditions were in imminent danger of becoming impaired by 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's marijuana use ( see Matter of Jeffrey M. [Noemi C.], 102 A.D.3d 608, 959 N.Y.S.2d 59; Matter of Anastasia G., 52 A.D.3d 830, 861 N.Y.S.2d 126).