Opinion
10445-10445A
11-26-2019
IN RE LIZA F., and Another, Children Under Eighteen Years of Age, etc., Bon F., Respondent-Appellant, v. Administration for Children's Services, Petitioner-Respondent.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for Appellant. Zachary W. Carter, Corporation Counsel, New York (Cynthia Kao of counsel), for Respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for Children.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for Appellant.
Zachary W. Carter, Corporation Counsel, New York (Cynthia Kao of counsel), for Respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for Children.
Mazzarelli, J.P., Kapnick, Gesmer, Moulton, JJ.
Order of disposition, Family Court, Bronx County (Patria Frias–Colo´n, J.), entered on or about April 30, 2018, insofar as it brings up for review a fact-finding order, same court (Ta–Tanisha D. James, J.), entered on or about March 16, 2018, which found that respondent father neglected the subject children, unanimously affirmed, without costs. Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
The father's acts of throwing a chair at the younger child, striking his right arm, wrapping his hands around that child's neck and choking him so as to cause scratches on his neck as documented in the color photographs taken by the caseworker the day after the January 22, 2017 incident and included in the record, constituted excessive corporal punishment (see Matter of Alysha M. , 24 A.D.3d 255, 255–256, 807 N.Y.S.2d 21 [1st Dept. 2005], lv denied 6 N.Y.3d 709, 813 N.Y.S.2d 45, 846 N.E.2d 476 [2006] ). The younger child's out-of-court statements as testified to by the caseworker were corroborated by the color photographs she took depicting the injuries she observed on the child when she interviewed him the day after the father assaulted him (see Matter of Tyson T. [Latoyer T.] , 146 A.D.3d 669, 669, 45 N.Y.S.3d 459 [1st Dept. 2017] ). The court's credibility determinations are supported by the record (see Matter of Bobbi B. [Bobby B.] , 165 A.D.3d 587, 587, 87 N.Y.S.3d 177 [1st Dept. 2018] ). Since a single incident of excessive corporal punishment can support a neglect finding (see Matter of Marelyn Dalys C.-G. [Marcial C.] , 113 A.D.3d 569, 570, 979 N.Y.S.2d 519 [1st Dept. 2014] ; Matter of Rachel H. , 60 A.D.3d 1060, 1061, 876 N.Y.S.2d 463 [2d Dept. 2009] ), we affirm on this basis, and need not reach the father's arguments about Family Court's additional findings.