719 763 2001 34 34 763 719 763 2001 In the Matter of Amanda " 34 Href 34 34 Href 87595 Supreme Court of the State of New York Appellate Division Third Judicial Department

• Decision Date: 25 January 2001
• Citation: 719 N.Y.S.2d 763
• Court: North Carolina Court of Appeals
• Parties: Page 763 719 N.Y.S.2d 763 (A.D. 3 Dept. 2001) In the Matter of Amanda "E" 1 et al., Alleged to be Abused and/or Neglected Children. Tioga County Department of Social Services, Appellant; Debbie "F", 1 Respondent. (And Another Related Proceeding.) 87595 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Page 763

719 N.Y.S.2d 763 (A.D. 3 Dept. 2001)

In the Matter of Amanda "E"¹ et al., Alleged to be Abused and/or Neglected Children.

Tioga County Department of Social Services, Appellant;

Debbie "F",¹ Respondent.

(And Another Related Proceeding.)

87595

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

January 25, 2001.

Thomas R. Emmett, County Attorney (John E. Kenny of counsel), Owego, for appellant.

Frederick C. Luther, Waverly, for respondent.

Peter Fee, Law Guardian, Binghamton, for Amanda "E" and another.

Before: Mercure, J.P., Crew III, Mugglin, Rose and Lahtinen, JJ.

Crew III, J.

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Tioga County (Artgetsinger, J.), entered May 26, 2000, which dismissed petitioner's applications, in two proceedings pursuant to Family Court Act article 10, to adjudicate respondents' children to be abused and/or neglected.

In March 2000, separate petitions were filed against respondents alleging that their children, Amanda (born in 1983) and Candi (born in 1986), had been abused and/or neglected. The petitions stemmed from an incident wherein respondent David "E" (hereinafter the father) allegedly struck Amanda, then 16½ years old, and respondent Debbie "F" (hereinafter the mother) purportedly failed to intervene. The respective petitions further alleged that Candi had been derivatively neglected as a result of this incident.

A combined hearing ensued in May 2000, during the course of which the father candidly admitted that he slapped Amanda across the face with an open hand during the course of an argument. Specifically, the father testified that when he confronted Amanda regarding a poor report from school and her recent conviction for assault, she became verbally abusive, at which point he pushed Amanda down on her bed. According to the father,² Amanda then became physically abusive and he, in turn, slapped her across the face. As a result of this incident, which the father testified lasted a matter of seconds, Amanda sustained a blackened right eye. Several witnesses testified, including Candi and the father's stepdaughter, that the father never had struck any of the children prior to this incident, and the father acknowledged that his behavior on this occasion was entirely inappropriate.

At the conclusion of the hearing, Family Court found insufficient evidence to sustain a finding of abuse and reserved decision as to the issue of neglect. Ultimately, Family Court concluded that the father's conduct, although inappropriate, did not constitute neglect under the particular circumstances of this case. Family Court dismissed the underlying petitions, and this appeal by petitioner ensued.

We affirm. While it is true, as petitioner urges, that a single incident may be sufficient to sustain a finding of neglect (see, e.g., Matter of Victoria CC. [Phyllis DD.],...