The Fourth Department, reversing Family Court, determined the evidence of corporal punishment was not sufficient to justify a finding of neglect:
According to the testimony of the father, he was called into the school by the child’s teachers in March 2014 because the child was misbehaving. When the father stated that he was taking the child home, the child began running around the classroom. The father chased the child around the classroom and, in attempting to grab him, accidentally caught him in the face with his hand, causing the marks. The father further testified, consistent with the child’s statement to the caseworker, that the child sustained a bruise in January 2014 while roughhousing with his siblings.
“[A] finding of neglect requires proof that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired’ as a result of the parent’s failure to exercise a minimum degree of care’ ” … .Although the use of excessive corporal punishment constitutes neglect … , a parent has the right to use reasonable physical force to instill discipline and promote the child’s welfare … . Here, we conclude that petitioner failed to establish that the father intentionally harmed the child or that his conduct was part of a pattern of excessive corporal punishment … , and petitioner thus failed to meet its burden of establishing by a preponderance of the evidence that the child was in imminent danger … . Matter of Damone H., Jr. (Damone H., Sr.), 2017 NY Slip Op 09023, Fourth Dept 12-22-17
FAMILY LAW (NEGLECT, EVIDENCE DID NOT SUPPORT NEGLECT FINDING BASED UPON CORPORAL PUNISHMENT (FOURTH DEPT))/NEGLECT (CORPORAL PUNISHMENT, EVIDENCE DID NOT SUPPORT NEGLECT FINDING BASED UPON CORPORAL PUNISHMENT (FOURTH DEPT))/CORPORAL PUNISHMENT (NEGLECT, EVIDENCE DID NOT SUPPORT NEGLECT FINDING BASED UPON CORPORAL PUNISHMENT (FOURTH DEPT))