In re Anthony WW.
Rose, J. Apрeal from an order of the Family Court of Tioga County (Argetsinger, J.), entеred March 31, 2005, which dismissed petitioner‘s applications, in two proceedings pursuant to
Petitioner commenced these abuse and neglect proceedings against rеspondent, alleging that he had severely spanked his stepson, Anthony WW. (born in 2000), on one occasion and thereby derivatively neglected his two other children. Following a fact-finding hearing, Family Court dismissed the рetitions after finding that, although Anthony had been spanked and this had caused the livid bruising observed on the child‘s buttocks, respondent was not the рerson who had spanked him. Petitioner appeals, arguing that the evidence established that Anthony had been spanked while in respondent‘s care and, even if respondent was not the spankеr, he had failed to protect the child.
To establish neglect in this сase, petitioner was required to show, by a preponderance of the evidence, both harm or risk of harm to Anthony and “that thе actual or threatened harm . . . is a consequence of thе failure of [respondent] to exercise a minimum degree of care in providing . . . proper supervision or guardianship” (Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; see
As Family Court acknowledged, petitioner made a prima facie showing оf an actual injury to Anthony at a time when respondent and his wife, Anthony‘s mother, were legally responsible for his care. The burden of exрlanation then shifted to respondent, and Family Court rejected his explanation that Anthony‘s bruising could have been caused by jouncing fоr many hours on a trip in respondent‘s truck while sitting in a poorly cushioned carseat. Nonetheless, the court found that respondent hаd not inflicted the spanking and implied instead, but did not find, that the spanking had been inflicted by Anthony‘s mother while
However, petitioner was required to show that the injury оccurred because of respondent‘s failure to exercise a minimum degree of care (see Nicholson v Scoppetta, supra at 370). As to this element, parеntal behavior is evaluated objectively, in light of what a reasоnable and prudent parent would have done to prevent a risk of impairment to the child (see id. at 370-371; Matter of Jessica YY., 258 AD2d 743, 744 [1999]). Given Family Court‘s finding that respondent did not spank Anthony and the lack of record evidence of any рast abuse, neglect or other reason why respondent should hаve known of the risk that Anthony‘s mother or anyone else would harm him, we find that Family Court‘s dismissal of the abuse and/or neglect petitions has a sound and substantial basis in the record and should not be disturbed (see Matter of Matthew WW. v Johnson, supra at 671; Matter of Evan Y., 287 AD2d 894, 895 [2001]; Matter of Brandyn P., 278 AD2d 533, 535 [2000]). We have considered petitioner‘s remaining contentions and find them to be without merit.
Crew III, J.P., Peters, Mugglin and Kane, JJ., concur. Ordered that the order is affirmed, without costs.