In re Joshua R.

47 A.D.3d 465, 849 N.Y.S.2d 246

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 2008
• Status: Published

Opinions

Order of disposition, Family Court, New York County (Rhoda J. Cohen, J), entered on or about August 3, 2005, which, upon a finding that respondent father neglected and abused Joshua R., and derivatively neglected and abused Isabella R., placed respondent under the supervision of petitioner Administration for Children’s Services for a period of 12 months, directed him to comply with therapy, barred him from residing at home, and awarded him weekly supervised visits with the children, modified, on the law and the facts, the findings of abuse and derivative abuse vacated, and otherwise affirmed, without costs.

The finding that respondent father neglected nine-year-old Joshua was established by a preponderance of the evidence. Following the child’s refusal to eat food, respondent shoved the food into his mouth, causing him to vomit, and slapped him in the face with such force as to bloody his nose and bruise his left eye (see Family Ct Act § 1012 [f] [i] [B]; Matter of Sheneika V, 20 AD3d 541 [2005]; Matter of Shawn BB., 239 AD2d 678 [1997]). The finding of derivative neglect was also appropriate inasmuch as respondent’s behavior demonstrated such an impaired level of parental judgment as to create a substantial risk of harm for any child in his care (Matter of Vincent M., 193 AD2d 398, 404 [1993]).

However, we modify the order to the extent of vacating the findings of abuse and derivative abuse. Family Court was presented with evidence that respondent believed his behavior in striking Joshua was not excessive. Although not condoning such conduct, we note that the evidence does not support a finding that respondent inflicted an injury to Joshua “which cause[d] or create [d] a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ” (Family Ct Act § 1012 [e] [i]; see Matter of Rosina W, 297 AD2d 639 [2002]).

We have considered respondent’s remaining contentions and find them unavailing. Concur—Nardelli, J.E, Gonzalez, McGuire and Kavanagh, JJ.