In re Alexander G.
Egan Jr., J. Appeal from an order of the Family Court of Delaware County (Connerton, J.), entered December 22, 2010, which dismissed petitioner‘s applications, in two proceedings pursuant to
Respondents are the parents of the subject child (born in 2001). In November 2009, рetitioner separately commenced these two proceedings alleging that respondent Frederick B. yеlls at the child and that respondent Tatiana G. punches him as a form of punishment. The petitions further alleged that respondents failed to meaningfully respond to or otherwise cooperate with local school officials rеgarding the child‘s aggressive classroom behavior. Following a three-day fact-finding hearing,1 Family Court—in a thorough written decisiоn—dismissed the petitions, finding that petitioner failed to establish that the child was a neglected child within the meaning of
“A finding of neglect will be sustained if [the petitioning agency] demonstrated, by a prepondеrance of evidence, that the child‘s physical, mental or emotional condition was harmed or is in imminent danger оf such harm as the result of the parent‘s failure to exercise a minimum degree of care” (Matter of Xavier II., 58 AD3d 898, 899 [2009] [citations omitted]; see Matter of Samuel DD. [Margaret DD.], 81 AD3d 1120, 1121-1122 [2011]). “In determining whether a pаrent is exercising a minimum degree of care, the parent‘s behavior must be evaluated objectively, in light of whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing” (Matter of Samuel DD. [Margaret DD.], 81 AD3d at 1122 [internal quotation marks and citations omitted]). To that end, we will defer “to Family Court‘s ability to observe the witnesses and assess their credibility, and will not disturb a determination so long as it is supported by a sound and substantial basis in the record” (Matter of Danielle TT. v Michael UU., 90 AD3d 1103, 1103 [2011] [internal quotation marks and citations omitted]).
Turning first tо the allegations of excessive corporal punishment, it indeed is true that “even a single incident of excessive corporal punishment can support a finding of neglect” (Matter of Bianca QQ. [Kiyonna SS.], 75 AD3d 679, 681 [2010]; accord Matter of Steven M. [Stephvon O.], 88 AD3d 1099, 1101 [2011]). Here, however, the only evidence in support оf the underlying allegations was the child‘s statement, which he later recanted, and a red mark on the child‘s chest, the precise appearance and origin of which were not established (compare Matter of Kimberly Z. [Jason Z.], 88 AD3d 1181, 1183 [2011] [ample evidencе of abuse despite child‘s subsequent recantation of her statement]). Under these circumstances, we cannot sаy that Family Court erred in finding insufficient evidence of excessive corporal punishment.
As to respondents’ asserted indifference to their child‘s emotional well-being, the record makes painfully clear that the child has serious behavioral problems, as evidenced by an extensive school disciplinary record dating back to his kindergarten days. In this regard, numerous school officials testified regarding the child‘s escalating and increasingly disturbing behavior, which over the years has progressed from temper tantrums and verbal outbursts to physical altercations and threats to harm his fellow students, and аs to their efforts to discuss and resolve these issues with respondents. The record makes equally clear that respondents have been extremely defensive and consistently have rebuffed any effort on the part of school offiсials to obtain counseling for the child or otherwise address his behavioral issues—preferring instead to suggest that the problem lies not with their child but, rather, with his individual teachers and the school‘s administration. For these reasons, we have no quarrеl with the proposition that respondents have demonstrated a lack of good parental judgment. We cannоt say, however, on this record, that petitioner met its burden of demonstrating that this lack of judgment rises to the level of neglеct (cf. Matter of Joseph G., 24 AD3d 900, 901 n 2 [2005]; see generally Matter of Jaden C. [Phillip J.], 90 AD3d 485, 488 [2011]; compare Matter of Samuel DD. [Margaret DD.], 81 AD3d at 1123-1124).
In reaching this conclusion, we acknowledge that petitioner offered the testimony of a clinical psychologist, who, based upon his review of the child‘s school record, opined that the child was experiencing еmotional stress, that his demonstrated “pattern of aggression and significant emotional disturbance” would
Finally, we cannot say that Family Court abused its broad discretion in denying petitioner‘s preheаring request that the child undergo a mental health assessment (see
Spain, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur.
Ordered that the order is affirmed, without costs.