Opinion
Nos. 2009-06595, (Docket No. N-18355-07).
March 29, 2011.
In a child protective proceeding pursuant to Family Court Act article 10, the Attorney for the Child and the petitioner, Administration for Children's Services, separately appeal, as limited by their respective briefs, from so much of an order of the Family Court, Queens County (Tally, J.), dated July 1, 2009, as, after a hearing, dismissed so much of the petition as alleged that the child was neglected by the father.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Kristin M. Helmers of counsel), for petitioner-appellant.
Steven Banks, New York, N.Y. (Tamara A. Steckler, Louise Feld, and Judith Waksberg of counsel), for nonparty-appellant.
Before: Covello, J.P., Hall, Lott and Cohen, JJ.
Ordered that the order is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and so much of the petition as alleged that the child was neglected by the father is granted.
Although parents have a right to use reasonable physical force "to maintain discipline or to promote the welfare" of their children (Penal Law § 35.10), the use of "excessive corporal punishment" constitutes neglect (Family Ct Act § 1012 [f] [i] [B]; see Matter of Isaiah S., 63 AD3d 948, 949). While the credibility findings of a hearing court are accorded deference ( see Matter of Irene O., 38 NY2d 776, 777; Matter of Andrew B. [Deborah B.], 73 AD3d 1036), we are free to make our own credibility assessments and, where proper, make a finding of neglect based upon the record before us ( see Matter of Samuel D.-C, 40 AD3d 853; Matter of Peter R, 8 AD3d 576). Upon review of this record, we conclude that the petitioner satisfactorily demonstrated by a preponderance of the evidence that Chanyae S. was a neglected child ( see Family Ct Act § 1046 [b] [i]; Matter of Sheneika V, 20 AD3d 541, 542). The record clearly shows that the father choked the child in response to a dispute over whether the child would babysit her younger siblings. Accordingly, the Family Court improperly dismissed the petition.
We note that since the child is now over 18 years old, it is unnecessary to remit the matter for a dispositional hearing ( see Matter of Daniel W, 37 AD3d 842, 843; Matter of John S., 175 AD2d 207, 208).
Motion by the nonparty appellant on an appeal from an order of the Family Court, Queens County, dated July 1, 2009, to strike the brief filed by Rena W By decision and order on motion of this Court dated January 20, 2011, the motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers submitted in support of the motion and the papers submitted in opposition thereto, and upon the argument of the appeal, it is,
Ordered that the motion is granted, and the brief filed by Rena W is stricken and has not been considered on the appeal. Covello, J.P., Hall, Lott and Cohen, JJ.