In re Christy C.
Matter of Christy C. v Jeffrey C.
2010
NY Slip Op 05270
Decided
on June 15, 2010
Appellate
Division, First Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on June 15, 2010
Andrias, J.P., Saxe, Sweeny, Nardelli, Catterson, JJ.
3047
3048 3049 M2534
[*1]In
re Christy C., and Others, Dependent Children Under Eighteen Years of Age, etc.,
and
Jeffrey
C., et al., Respondents-Appellants, The Administration
for Children's Services, Petitioner-Respondent.
Paul,
Weiss, Rifkind, Wharton & Garrison LLP,
(Jane C. Schuster of counsel), for Jeffrey C., appellant.
George E. Reed, Jr.,
Michael
A. Cardozo, Corporation Counsel,
Morris of counsel), for respondent.
Randall
S. Carmel, Syosset, Law Guardian.
Order
of disposition, Family Court, Bronx County (Monica Drinane,
J.), entered on or about May 19, 2009, which, upon findings of neglect, inter
alia, released the subject children to the custody of the mother with twelve
months of supervision by the Administration for Children's Services (ACS), on
conditions that the mother and children receive family counseling for domestic
violence, that the father receive anger management therapy, enroll in a
batterer's program and be referred for psychiatric evaluation and for family
counseling, and entered a final order of protection against the father for
twelve months with respect to the children, allowing only supervised visits,
unanimously reversed, on the law and the facts,
without costs, the findings of neglect vacated and the petitions dismissed.
We
find that the record does not support the finding of neglect inasmuch as a
preponderance of the evidence did not demonstrate that the children's physical,
mental or emotional condition has been impaired or is in danger of becoming
impaired, or that the actual or threatened harm to the child is a consequence
of the failure of the parents to exercise a minimal degree of care in providing
the child with proper supervision or guardianship (see Nicholson v Scopetta, 3 NY3d 357, 368 [2004]; FCA §§ 1012[f], 1046[b][i]). While incidents of domestic violence can provide a
permissible basis upon which to make a finding of neglect (see Matter of
[*2]Daphne G., 308 AD2d 132, 135 [2003]; Matter of Deandre
T., 253 AD2d 497, 498 [1998]), here, the hearing testimony pertained to a single
act of domestic violence which occurred outside the presence of the children
and thus was insufficient to establish that the children's physical, mental or
emotional condition was in imminent danger of becoming impaired (see Matter of Davin G., 11 AD3d 462, 462-463 [2004]; Matter of Daphne G.,
308 AD2d at 134-135).
What
the hearing court characterized as a "repeated atmosphere of domestic
violence" was based upon improper reliance on hearsay statements by
respondent mother and respondent father contained in police domestic incident
reports that did not fall within another exception to the hearsay rule (see
Matter of Imani B., 27 AD3d 645 [2006]; see generally
Matter of Leon RR, 48 NY2d 117, 122 [1979]), and the police reports were
inadmissible since the information contained in the reports came from witnesses
not engaged in the police business in the course of which the memorandum was
made (see Holiday v Hudson Armored Car & Courier Serv.,
301 AD2d 392, 396 [2003], lv dismissed, lv denied 100 NY2d 636 [2003]; Yeargans
v Yeargans, 24 AD2d 280, 282 [1965]).
Furthermore,
a preponderance of the evidence did not support a finding of neglect based on
excessive corporal punishment on one of the subject children, and derivatively
on the other subject children. The father acknowledged that he
"popped" or "tapped" the child, but there was no basis to
conclude that the force he used was excessive or that it went beyond his
common-law right to use reasonable force (see Matter of Peter G., 6 AD3d 201,
206 [2004], appeal dismissed 3 NY3d 655 [2004]; Penal Law § 35.10[1]),
particularly since the child sustained no injury and was laughing after his
father hit him, his brother told the
caseworker that the child was in good spirits
after being hit, and the case based on the child's initial report to the school
guidance counselor was closed as unsubstantiated.
M-2534
- In re Christy C., and Others
Motion
to strike portions of brief denied.
THIS
CONSTITUTES THE DECISION AND ORDER
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
JUNE 15, 2010
CLERK