Opinion
2011-10-11
In re JOSEPH C. and Another, Children under the Age of Eighteen Years, etc.,Anthony C., Respondent–Appellant,Administration for Children's Services, Petitioner–Respondent.
Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Kevin R. Reich of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.Tamara A. Steckler, The Legal Aid Society, New York (Judith Waksberg of counsel), attorney for the children.
Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Kevin R. Reich of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.Tamara A. Steckler, The Legal Aid Society, New York (Judith Waksberg of counsel), attorney for the children.
Amended order of disposition, Family Court, Bronx County (Karen I. Lupuloff, J.), entered on or about June 29, 2010, which, upon a fact-finding determination that respondent further neglected his stepson, Joseph C., and derivatively neglected his biological son, Tristin C., released Joseph to the custody of his biological father with six months' supervision by the Administration for Children's Services, unanimously affirmed, without costs.
A neglected child is defined as a child less than 18 years of age whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent to exercise a reasonable degree of minimal care in providing the child with proper supervision or guardianship (Family Court Act § 1012[f][i] ). In this instance, the neglect finding was
based on the court's conclusion that respondent unreasonably inflicted or allowed to be inflicted harm, or a substantial risk thereof, through the infliction of excessive corporal punishment ( see Family Court Act § 1012[f][i][B] ).
Here, a preponderance of the evidence credited by the court supports its finding that respondent neglected his stepson by inflicting excessive corporal punishment on him ( see Family Court Act § 1012[f][i][B]; Matter of Syed I., 61 A.D.3d 580, 877 N.Y.S.2d 318 [2009] ). Respondent admitted that he punished his stepson by requiring him to hold himself in a “push-up” position and kneel on uncooked grains of rice for extended periods of time. We agree with the court's finding that these actions are not “appropriate forms of discipline.” Furthermore, to the extent respondent asserts that his actions did not cause his stepson any physical, emotional, or mental injury, we note that the absence of actual injury does not preclude a finding of neglect ( see Matter of Tammie Z., 105 A.D.2d 463, 464, 480 N.Y.S.2d 786 [1984], affd. 66 N.Y.2d 1, 494 N.Y.S.2d 686, 484 N.E.2d 1038 [1985] ).
The derivative finding of neglect of respondent's biological son was proper as respondent's inappropriate and excessive corporal punishment of his 11–year–old stepson clearly demonstrated a sufficiently faulty understanding of his parental duties to warrant an inference of an ongoing danger to the approximately 2 year-old child as this Court did in Matter of Syed I., 61 A.D.3d 580, 877 N.Y.S.2d 318 [2009], supra.
However, unlike Syed I., where we noted that the mother was aware of the father's deteriorating mental health and that she could not protect the children when he hit them, respondent here has admitted that this was “not his finest parenting moment,” demonstrating an appreciation of Family Court's conclusion that the punishments were grossly disproportionate to the offenses committed by his stepson. Furthermore, we take judicial notice of the fact that respondent's biological son has been returned to his care following respondent's satisfactory completion of a six-month period of ACS supervision. Nonetheless, we are reluctant to set aside the dispositions and credibility determinations of the Family Court. However, we urge the agency to evaluate any future complaints of abuse or neglect concerning the biological son, should there be any, on their own merits and not to be unduly influenced by the existing derivative neglect finding.
We have considered respondent's remaining contentions and find them unavailing.