Suffolk County Department of Social Services v. Diane J.

222 A.D.2d 439, 634 N.Y.S.2d 523, 1995 N.Y. App. Div. LEXIS 12500

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 1995
• Status: Published

Opinion

—In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals from a fact-finding order and order of disposition (one paper) of the Family Court, Suffolk County (Pach, J.), dated May 3, 1994, which, after a fact-finding hearing, inter alia, made an affirmative finding of neglect against her.

Ordered that the fact-finding order and order of disposition is reversed, on the law, without costs or disbursements, and the proceeding is dismissed.

Family Court Act § 1012 (f) defines a neglected child as a child under 18 years of age:

"(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent * * * to exercise a minimum degree of care * * *

"in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm * * * including the infliction of excessive corporal punishment”.

Impairment or imminent danger of impairment must, however, be "clearly attributable” to a parent’s failure to exercise this degree of care (see, Family Ct Act § 1012 [h]). In this case, there was insufficient evidence to establish that the child’s physical, emotional, or mental condition was impaired or in imminent danger of impairment due to the mother’s corporal punishment. Therefore, a finding of neglect is not supported by the evidence (cf., Family Ct Act § 1012 [h]; see, Matter of Coleen P., 148 AD2d 782; Matter of Jessica G., 200 AD2d 906). Thompson, J. P., Ritter, Joy and Florio, JJ., concur.