In re Nah-Ki B. Administration for Children's Services

Appeal by the petitioner from an order of fact-finding and disposition of the Family Court, Kings County (Ann O’Shea, J.), dated March 1, 2016. The order, after a fact-finding hearing, and upon a finding that the petitioner failed to establish that the father neglected the subject children, dismissed the petitions.

Ordered that the order is reversed, on the law and the facts, without costs or disbursements, the petitions are reinstated, a finding is made that the father neglected the subject children, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing and a disposition thereafter.

The father is a person legally responsible for the care of Tahjane C., and the biological parent of Nah-Ki B. and Shikiya B. (hereinafter collectively the subject children). On July 1, 2015, the petitioner filed petitions pursuant to Family Court Act article 10 alleging that the father neglected Tahjane by inflicting excessive corporal punishment on her, and that he neglected all of the subject children by perpetrating acts of domestic violence against the nonrespondent mother in the presence of the subject children. A fact-finding hearing was held on February 24, 2016.

At the hearing, the mother testified that in June 2015, the father began an altercation with her wherein the father threw a cup with something in it at her and Shikiya. The mother further testified that, during the altercation, Tahjane tried to intervene to protect her, but the father pushed Tahjane out of the way, and that thereafter, the father punched the mother in the head, causing her to lose consciousness while all of the children were present. The mother testified that after she regained consciousness, Tahjane told her that the father had choked Tahjane, and that Nah-Ki also told her that the father hit the mother. The mother was thereafter taken to the hospital. The mother’s medical records from the night of the incident were admitted as evidence at the hearing. The records indicate that on the day of the incident, the mother told the attending physician that she sustained her injuries from an altercation with the father during which the father had also hit Tahjane. The petitioner’s progress notes, which were also admitted as evidence, described a conversation between Tahjane and a caseworker regarding the altercation with her

The father did not appear at the hearing or present any evidence.

At the close of the hearing, the petitioner asked the Family Court to find that the father neglected the subject children and to draw a negative inference from the father’s failure to appear and testify. The attorney for the subject children likewise argued that the court should enter a finding of neglect.

After the fact-finding hearing, the Family Court found that the petitioner failed to establish that the father neglected the subject children, and dismissed the petitions. The petitioner appeals.

In order to establish neglect of a child, the petitioner must demonstrate, by a preponderance of the evidence, (1) that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship (see Family Ct Act §§ 1012 [f] [i]; 1046 [b]; Nicholson v Scoppetta, 3 NY3d 357 , 368 [2004]).

With respect to the allegation of neglect of Tahjane, while parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect (see Family Ct Act § 1012 [f] [i] [B]; Matter of Dalia G. [Frank B.], 128 AD3d 821 , 823 [2015]; Matter of Matthew M. [Fatima M.], 109 AD3d 472 , 473 [2013]; Matter of Delehia J. [Tameka J.], 93 AD3d 668 , 669 [2012]). A single incident of excessive corporal punishment may suffice to sustain a finding of neglect (Matter of Dalia G. [Frank B.], 128 AD3d at 823 ; Matter of Joseph O’D. [Denise O’D.], 102 AD3d 874 , 875 [2013]; Matter of Yanni D. [Hope J.], 95 AD3d 1313 , 1313 [2012]). Further, in a child protective proceeding, the child’s prior out-of-court statements relating to the alleged neglect may serve as the basis for a finding of neglect “provided that these hearsay statements are corroborated, so as to ensure their reliability” (Ma tter of Alexis S. [Edward S.], 115 AD3d 866 , 866

Contrary to the Family Court’s determination, the mother’s testimony and medical records provided sufficient corroboration to support the reliability of Tahjane’s out-of-court statements that the father choked her and, together with the petitioner’s progress notes, established the allegation, by a preponderance of the evidence, that the father inflicted excessive corporal punishment on Tahjane (see Matter of Kyle D. [Dwayne D.], 138 AD3d 835 , 835-836 [2016]; Matter of Charlie S. [Rong S.], 82 AD3d 1248 , 1249 [2011]; Matter of Christopher L., 19 AD3d at 598 ). Further, the court should have drawn a negative inference from the father’s failure to testify (see generally Matter of Rosy S., 54 AD3d 377 , 378 [2008]). Accordingly, the petitioner established, by a preponderance of the evidence, that the father neglected Tahjane by inflicting excessive corporal punishment on her.

The petitioner also established, by a preponderance of the evidence, that the father neglected all of the subject children by perpetrating acts of domestic violence against the mother in their presence. Although “exposing a child to domestic violence is not presumptively neglectful” (Nicholson v Scoppetta, 3 NY3d at 375 ), a finding of neglect based on an incident or incidents of domestic violence is proper where a preponderance of the evidence establishes that the child was actually or imminently harmed by reason of the parent or caretaker’s failure to exercise a minimum degree of care (see id. at 372 ).

According to the mother, there was a history of domestic violence. With respect to the incident at issue, the evidence showed that the father choked Tahjane when she tried to intervene between the father and the mother after the father

Accordingly, the Family Court improperly dismissed the petitions, and the order appealed from must be reversed, the petitions reinstated, a finding of neglect entered, and the matter remitted to the Family Court, Kings County, for a dispositional hearing and a disposition thereafter.

Dillon, J.P., Miller, Duffy and LaSalle, JJ., concur.