Opinion
CAF 01-00770.
November 21, 2003.
Appeal from those parts of an order of Family Court, Oneida County (Flemma, J.H.O.), entered November 16, 2000, that, inter alia, placed respondent Rose K. under the supervision of petitioner for a period of eight months.
Norman P. Deep, Clinton, for Respondent-Appellant.
Before: Present: Green, J.P., Wisner, Scudder, Gorski, and Lawton, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the petition against respondent Rose K. is dismissed.
Memorandum: Petitioner failed to meet its burden of proving by a preponderance of the evidence that Rose K. (respondent) neglected her stepdaughter ( see Family Ct Act § 1046 [b] [i]). The evidence at the fact-finding hearing establishes that the stepdaughter sustained an injury to her wrist as the result of a physical altercation with her father over a sexually explicit photograph and that respondent merely attempted to retrieve a second photograph from the stepdaughter's pocket during the altercation. It is undisputed that respondent's conduct did not cause the injury. The evidence also fails to establish that respondent "`knew or should reasonably have known' that the child was in danger" from her father's conduct ( Matter of Robert YY., 199 A.D.2d 690, 692, quoting Matter of Sara X., 122 A.D.2d 795, 796, appeal dismissed 69 N.Y.2d 707). Petitioner presented no proof of a pattern of excessive force by the father; indeed, the proof establishes that this was a single, isolated incident ( see Matter of Anthony PP., 291 A.D.2d 687, 688; Matter of Amanda E., 279 A.D.2d 917, 918; Matter of Luke M., 193 A.D.2d 446, 447). Finally, the evidence fails to establish that, during the altercation, respondent was aware that the stepdaughter was injured or "that a reasonably prudent parent would have acted differently and, in so doing, prevented the injury" ( Robert YY., 199 A.D.2d at 692). We therefore reverse the order insofar as appealed from and dismiss the petition against respondent.