IN RE: DESIREE D. (2022)

Order of disposition, Family Court, Bronx County (Michael R. Milsap, J.), entered on or about November 23, 2021, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about October 28, 2021, which found that respondent mother neglected and derivatively neglected the two subject children, unanimously affirmed, without costs.  Appeal from the 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 the mother neglected the older 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 to the caseworker that the mother bit her hand, hit her in the head with a cane, and scratched her face after she tried to intervene in a physical altercation between the mother and her boyfriend is supported by the caseworker's testimony as to her own observations of the child's injuries, along with the color photographs the caseworker took depicting the injuries she observed on the child's hand and face a few hours after the mother assaulted her (see Matter of Terazay S. [Yazaret T.], 180 A.D.3d 487, 487–488, 115 N.Y.S.3d 884 [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]).

Regardless of whether the mother had a valid reason for disciplining the older child, the descriptions of her violence towards the child and the resulting injuries as seen in the photographs show that the mother's actions were inappropriate and went well beyond any common-law right to use reasonable force to discipline her children (see Matter of Rahmel G. [Carlene G.], 201 A.D.3d 567, 568, 157 N.Y.S.3d 710 [1st Dept. 2022];  Matter of Krystopher D'A. [Amakoe D'A.], 121 A.D.3d 484, 484, 994 N.Y.S.2d 107 [1st Dept. 2014]).  That the older child's injuries were the result of a single incident does not preclude a finding of excessive corporal punishment (see Matter of Liza F. [Bon F.], 177 A.D.3d 570, 571, 111 N.Y.S.3d 532 [1st Dept. 2019];  Matter of Jayden R. [Jacqueline C.], 134 A.D.3d 638, 639, 23 N.Y.S.3d 170 [1st Dept. 2015]).

The mother's other arguments regard matters outside the record, are unpersuasive.  Further, the mother's claim that petitioner's failure to produce the older child to testify at the fact-finding hearing violated her constitutional right of confrontation is improperly raised for the first time on appeal because the record shows that the mother never requested the child's testimony (see Matter of “Baby Girl” Q., 14 A.D.3d 392, 393, 787 N.Y.S.2d 328 [1st Dept. 2005], lv denied 5 N.Y.3d 704, 801 N.Y.S.2d 1, 834 N.E.2d 780 [2005]).

In addition, the mother's use of excessive corporal punishment against the older child supports the finding of derivative neglect as to the younger child, because her behavior demonstrated such an impaired level of judgment as to create a substantial risk of harm to any child in her care (see Family Ct Act § 1046[a][i];  Matter of David R. [Carmen R.], 123 A.D.3d 483, 485, 998 N.Y.S.2d 182 [1st Dept. 2014];  Matter of Joshua R., 47 A.D.3d 465, 466, 849 N.Y.S.2d 246 [1st Dept. 2008], lv denied 11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198 [2008]).  The testimony establishes that the younger child witnessed, or was present for, part of the altercation between the older child and the mother, further supporting the finding of derivative neglect (see Matter of Tyson T. [Latoyer T.], 146 A.D.3d 669, 670, 45 N.Y.S.3d 459 [1st Dept. 2017];  Matter of Nataysha O. [Manuel O.], 135 A.D.3d 660, 661, 25 N.Y.S.3d 88 [1st Dept. 2016]).

The older child's request to modify the placement terms of the dispositional order and return to her mother due to legitimate issues with her ACS placement, is not properly before us, since she did not appeal.  In any event, the issue is moot, as that order has expired by its own terms and was superseded by a later permanency order (see Matter of Fawaz A. [Franklyn B.C.], 112 A.D.3d 550, 551, 978 N.Y.S.2d 39 [1st Dept. 2013]).

We have considered the mother's remaining contentions and find them unavailing.