IN RE: JEREMIAH J. (Anonymous).  Administration for Children's Services

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

IN RE: JEREMIAH J. (Anonymous).  Administration for Children's Services, respondent;  Selene A.C. (Anonymous), appellant.  (Proceeding No. 1) In the Matter of Malachi R. (Anonymous).  Administration for Children's Services, respondent;  Selene A.C. (Anonymous), appellant.  (Proceeding No. 2) In the Matter of Quran C. (Anonymous).  Administration for Children's Services, respondent;  Selene A.C. (Anonymous), appellant.  (Proceeding No. 3)

2018–10228

Decided: November 13, 2019

ALAN D. SCHEINKMAN, P.J. RUTH C. BALKIN SHERI S. ROMAN FRANCESCA E. CONNOLLY, JJ. Joseph H. Nivin, Forest Hills, NY, for appellant. Georgia M. Pestana, Acting Corporation Counsel, New York, N.Y. (Jane L. Gordon and Jamison Davies of counsel), for respondent. Olga J. Rodriguez, Forest Hills, NY, attorney for the children.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the mother appeals from (1) an order of fact-finding of the Family Court, Queens County (Diane Costanzo, J.), dated February 26, 2018, and (2) an order of disposition of the same court dated August 7, 2018.  The order of fact-finding, after a fact-finding hearing, found that the mother neglected the subject children.  The order of disposition, after a dispositional hearing, inter alia, placed the mother, upon consent, under the supervision of the Administration for Children's Services for a period of six months under certain terms and conditions.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition;  and it is further,

ORDERED that the appeal from so much of the order of disposition as placed the mother, upon consent, under the supervision of the Administration for Children's Services for a period of six months under certain terms and conditions is dismissed, 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 (hereinafter ACS) commenced these proceedings pursuant to Family Court Act article 10, alleging, inter alia, that the mother neglected Jeremiah J. by inflicting excessive corporal punishment on him and that she neglected Jeremiah J., Malachi R., and Quran C. (hereinafter collectively the subject children) by maintaining her home in an unsafe and unsanitary condition.  Following a fact-finding hearing, the Family Court found that the mother neglected Jeremiah F. by inflicting excessive corporal punishment on him and that she neglected the subject children by failing to provide a safe and sanitary home.  In an order of disposition, the court, inter alia, placed the mother, upon consent, under the supervision of ACS for a period of six months under certain terms and conditions.  The mother appeals from the order of fact-finding and the order of disposition.

The appeal from so much of the order of disposition as placed the mother, upon consent, under ACS supervision for a period of six months must be dismissed, as no appeal lies from an order entered upon the consent of the appealing party (see Matter of Kaylarose J.H. [Rena R.D.], 160 A.D.3d 953, 954, 72 N.Y.S.3d 482;  Matter of Eunice D. [James F.D.], 111 A.D.3d 627, 628, 975 N.Y.S.2d 73).  In any event, that portion of the order of disposition has been rendered academic, as it has expired (see Matter of Justin P. [Damien P.], 148 A.D.3d 903, 903, 48 N.Y.S.3d 773;  Matter of Shaquan A. [Fan Fan A.], 137 A.D.3d 1119, 1119, 27 N.Y.S.3d 692).  However, the appeal from so much of the order of disposition as brings up for review the finding of neglect in the order of fact-finding is not academic, since a finding of neglect constitutes a permanent and significant stigma, which might indirectly affect the mother's status in future proceedings (see Matter of Justin P. [Damien P.], 148 A.D.3d at 904, 48 N.Y.S.3d 773;  Matter of Ethan B. [Frederick B.], 130 A.D.3d 816, 817, 12 N.Y.S.3d 549).

“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” (Matter of Kaylarose J.H. [Rena R.D.], 160 A.D.3d at 955, 72 N.Y.S.3d 482;  see Family Ct. Act §§ 1012[f][I];  1046[b];  Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840;  Matter of Harmony H. [Welton H.], 148 A.D.3d 1019, 1020, 48 N.Y.S.3d 787).

While parents have the right to use reasonable physical force against a child to maintain discipline or promote the child's welfare (see Matter of Kaylarose J.H. [Rena R.D.], 160 A.D.3d at 955, 72 N.Y.S.3d 482;  Matter of Eliora B. [Kennedy B.], 146 A.D.3d 772, 773, 45 N.Y.S.3d 144), “the use of excessive corporal punishment constitutes neglect” (Matter of Kaylarose J.H. [Rena R.D.], 160 A.D.3d at 955, 72 N.Y.S.3d 482 [internal quotation marks omitted];  see Matter of Eliora B. [Kennedy B.], 146 A.D.3d at 773, 45 N.Y.S.3d 144).  “A single incident of excessive corporal punishment is sufficient to sustain a finding of neglect” (Matter of Za'Niya D. [Kenneth R.], 133 A.D.3d 657, 657, 18 N.Y.S.3d 882;  see Matter of Kaylarose J.H. [Rena R.D.], 160 A.D.3d at 955, 72 N.Y.S.3d 482;  Matter of Eliora B. [Kennedy B.], 146 A.D.3d at 773, 45 N.Y.S.3d 144).

Here, a preponderance of the evidence supports the Family Court's finding that the mother neglected Jeremiah J. by inflicting excessive corporal punishment on him (see Matter of Maya B. [Muke B.], 156 A.D.3d 784, 786, 66 N.Y.S.3d 519;  Matter of Tarelle J. [Walter J.], 152 A.D.3d 593, 595, 58 N.Y.S.3d 539;  Matter of Amparo B.T. [Carlos B.E.], 118 A.D.3d 809, 811, 987 N.Y.S.2d 199).

Further, contrary to the mother's contention, the Family Court's finding that she neglected the subject children by failing to provide a safe and sanitary home was supported by a preponderance of the evidence.  The evidence adduced at the fact-finding hearing established, inter alia, that the mother maintained the subject children's home in an unsafe and unsanitary condition (see Matter of John H.M., 54 A.D.3d 763, 763, 864 N.Y.S.2d 89;  Matter of Paul J., 6 A.D.3d 709, 710, 775 N.Y.S.2d 373;  Matter of Noemi B., 273 A.D.2d 304, 304, 708 N.Y.S.2d 477).

SCHEINKMAN, P.J., BALKIN, ROMAN and CONNOLLY, JJ., concur.

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