Opinion
15798-15798A Dkt. No. NN-3774-76/21 Case No. 2021–03426
04-26-2022
In the MATTER OF EMPRESS B., and Others, Children Under Eighteen Years of Age, etc., Henrietta L., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Steven N. Feinman, White Plains, for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Kevin Osowski of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), attorney for the children.
Steven N. Feinman, White Plains, for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Kevin Osowski of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), attorney for the children.
Renwick, J.P., Kapnick, Gesmer, Moulton, Shulman, JJ.
Order of disposition, Family Court, Bronx County (Sarah P. Cooper, J.), entered on or about August 24, 2021, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about the same date, which determined that respondent mother neglected her eldest child and derivatively neglected her two other children, unanimously affirmed, without costs. Appeal from fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition. A preponderance of the evidence supports the finding that respondent neglected the eldest child by inflicting excessive corporal punishment upon her (see Family Ct Act §§ 1012[f][i][B] ; 1046[b][i]). The child's out-of-court statement that respondent physically fought with her was corroborated by the youngest child's out-of-court statements, which were submitted through a caseworker's testimony, as well as respondent's own out-of-court statements and testimony about the incident, the caseworker's further testimony that she saw the eldest child's injuries two days after that incident occurred, and the medical records and the photographs documenting those injuries (see Matter of Syeda A. [Syed I.], 186 A.D.3d 1145, 1146, 131 N.Y.S.3d 14 [1st Dept. 2020] ; Matter of Alyssa–Marie D. [Richard Luke D.], 171 A.D.3d 493, 494, 95 N.Y.S.3d 806 [1st Dept. 2019] ).
Whether or not respondent had a valid reason for disciplining her eldest child, then 14 years old, who had left the home with an older cousin without permission for two days, the testimony describing her violence toward the child and the child's resulting injuries reflect that the discipline was not appropriate in form or degree (see Matter of Krystopher D'A. [Amakoe D'A.], 121 A.D.3d 484, 484, 994 N.Y.S.2d 107 [1st Dept. 2014] ). This discipline far exceeded any reasonable force that she had a common-law right to use to discipline her child (see Matter of Jermaine J. [Howard J.], 121 A.D.3d 437, 438, 993 N.Y.S.2d 34 [1st Dept. 2014] ). That the injuries were the result of a single incident of excessive corporal punishment does not preclude a finding of excessive corporal punishment (see Matter of Syeda, 186 A.D.3d at 146, 129 N.Y.S.3d 67 ).
Respondent's use of excessive corporal punishment against the eldest child supports the finding of derivative neglect as to the child's two younger siblings. The siblings were home during the incident (see Family Ct Act § 1046[a][i] ; Matter of Tyson T. [Latoyer T.], 146 A.D.3d 669, 670, 45 N.Y.S.3d 459 [1st Dept. 2017] ). The youngest child witnessed it, and both of the younger siblings saw the eldest child's bloody lip afterwards. The extent of respondent's conduct, and her lack of control, demonstrate that her parental judgment was so impaired as to create a substantial risk of harm for any child in her care (see Matter of Nataysha O. [Manuel O.], 135 A.D.3d 660, 661, 25 N.Y.S.3d 88 [1st Dept. 2016] ; Matter of David R. [Carmen R.], 123 A.D.3d 483, 485, 998 N.Y.S.2d 182 [1st Dept. 2014] ).