IN RE: ZANA C. (Anonymous).

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: ZANA C. (Anonymous). Administration for Children's Services, Respondent; v. Dana F. (Anonymous), Appellant.

2018–02067

Decided: April 17, 2019

LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ. Daniel E. Lubetsky, Jamaica, NY, for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Elizabeth I. Freedman of counsel), for respondent. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell, Raymond E. Rogers, Alexandra Meeks, and Adam Starritt), attorney for the child.

DECISION & ORDER

ORDERED that the appeal from so much of the order of disposition as continued the placement of the subject child in the kinship foster home of her maternal aunt until the completion of the next permanency hearing is dismissed as academic, without costs or disbursements;  and it is further,

ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

The Administration for Children's Services filed a petition against the mother, alleging, inter alia, that she had neglected the subject child, who was then nine years old, by inflicting excessive corporal punishment upon her.  After a fact-finding hearing, the Family Court found that the allegations of the petition had been established by a preponderance of the evidence.  Following a dispositional hearing, the court issued an order of disposition dated January 2, 2018, which, inter alia, continued the placement of the child with her maternal aunt until the completion of the next permanency hearing.  The mother appeals.

The appeal from so much of the order of disposition as continued the placement of the child until the next permanency hearing must be dismissed as academic, as the period of placement has expired (see Matter of Michael G. [Marie S.F.], 152 A.D.3d 590, 590, 59 N.Y.S.3d 74;  Matter of Najad D. [Kiswana M.], 99 A.D.3d 707, 708, 951 N.Y.S.2d 747;  Matter of Derek P., 43 A.D.3d 938, 938, 841 N.Y.S.2d 644).  The adjudication of neglect, however, “constitutes a permanent and significant stigma which might indirectly affect the status of the mother in potential future proceedings” (Matter of Michael G. [Marie S.F.], 152 A.D.3d at 590, 59 N.Y.S.3d 74).  Therefore, the appeal from so much of the order of disposition as brings up for review the determination that the mother neglected the child is not academic (see id. at 590;  see also Matter of Derek P., 43 A.D.3d at 939, 841 N.Y.S.2d 644).

Parents possess a right to use reasonable physical force against a child to discipline or promote the child's welfare (see Matter of Matthew M. [Fatima M.], 109 A.D.3d 472, 473, 970 N.Y.S.2d 271;  Matter of Isaiah S., 63 A.D.3d 948, 949, 880 N.Y.S.2d 528;  see also Penal Law § 35.10[1] ).  A parent's use of excessive corporal punishment, however, constitutes neglect (see Family Ct Act § 1012[f][i][B];  Matter of Anastasia L.-D. [Ronald D.], 113 A.D.3d 685, 686, 978 N.Y.S.2d 347;  Matter of Matthew M. [Fatima M.], 109 A.D.3d at 473, 970 N.Y.S.2d 271;  Matter of Delehia J. [Tameka J.], 93 A.D.3d 668, 669, 939 N.Y.S.2d 570;  Matter of Isaiah S., 63 A.D.3d at 949, 880 N.Y.S.2d 528).  A finding of neglect must be supported by a preponderance of the evidence (see Family Ct Act § 1046[b][i];  Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840;  Matter of Isaiah S., 63 A.D.3d at 949, 880 N.Y.S.2d 528).  A single incident of excessive corporal punishment may suffice to sustain a finding of neglect (see Matter of Elisa V.[Hung V.], 159 A.D.3d 827, 828, 71 N.Y.S.3d 626;  Matter of Eliora B. [Kennedy B.], 146 A.D.3d 772, 773, 45 N.Y.S.3d 144;  Matter of Sheneika V., 20 A.D.3d 541, 542, 800 N.Y.S.2d 424).

Contrary to the mother's contention, the determination that she neglected the child by inflicting excessive corporal punishment upon her was supported by a preponderance of the evidence (see Matter of Maya B. [Muke B.], 156 A.D.3d 784, 785, 66 N.Y.S.3d 519;  Matter of Adam Christopher S. [Deborah D.], 120 A.D.3d 1110, 1110, 992 N.Y.S.2d 404;  Matter of Yanni D. [Hope J.], 95 A.D.3d 1313, 1314, 944 N.Y.S.2d 923;  Matter of Joseph O., 28 A.D.3d 562, 563, 813 N.Y.S.2d 213;  Matter of Sheneika V., 20 A.D.3d at 542, 800 N.Y.S.2d 424).  Where, as here, issues of credibility are presented, the hearing court's findings must be accorded great deference unless clearly unsupported by the record (see Matter of Vany A.C. [Laneska M.], 125 A.D.3d 650, 651, 2 N.Y.S.3d 616;  Matter of Negus T. [Fayme B.], 123 A.D.3d 836, 836, 996 N.Y.S.2d 544).  The credible evidence adduced at the fact-finding hearing established that the mother initiated an altercation with the child, physically attacking and choking her, in response to a dispute over ice pop flavors.  Furthermore, there was evidence at the fact-finding hearing of additional incidents of the mother's use of excessive corporal punishment against the child (see Matter of Sheneika V., 20 A.D.3d at 542, 800 N.Y.S.2d 424).

Accordingly, we agree with the Family Court's finding that the mother neglected the child.

AUSTIN, J.P., COHEN, BRATHWAITE NELSON and IANNACCI, JJ., concur.

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