MATTER OF CURTIS K.

• Decision Date: 10 February 1999
• Citation: 258 A.D.2d 911,685 N.Y.S.2d 375
• Parties: In the Matter of CURTIS K. and Another, Children Alleged to be Neglected.<BR>ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent;<BR>MAVIS K., Appellant. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

258 A.D.2d 911

685 N.Y.S.2d 375

In the Matter of CURTIS K. and Another, Children Alleged to be Neglected. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; MAVIS K., Appellant. (Appeal No. 2.)

Decided February 10, 1999.

Present — Denman, P.J., Green, Hayes, Wisner and Callahan, JJ.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Respondent appeals from two orders of Family Court dated December 24, 1997. The first is an order of protection prohibiting respondent from inflicting any corporal punishment on her two children or committing any criminal acts against them. The second extends the placement of the children in the custody of petitioner for 12 months and directs respondent to observe the conditions of behavior specified in the order of protection. The order incorporates by reference the court's decision, which provides in part that respondent is prohibited from "engaging in offensive conduct, specifically excessive corporal punishment or excessive exercise".

Respondent's four children, including the two who are the subject of these appeals (Curtis and Vance), were removed from the household in early 1996 because of allegations of physical abuse. After the court found that the children were neglected (see generally, Matter of Brandiwell K., 247 AD2d 931), a dispositional hearing was scheduled, but respondent waived her right to a hearing and agreed to a 12-month placement of the children with petitioner, subject to extension upon petition to the court, with supervised visitation. Respondent also agreed to the issuance of an order of protection.

That order was due to expire in December 1997. In September 1997 petitioner filed a petition for extension of supervision, having returned Curtis and Vance to respondent and the children's stepfather, Vance B., on July 30, 1997. According to a report prepared by a Senior Caseworker, respondent and Vance B. had "successfully completed all court ordered services including substance abuse evaluations, domestic violence counseling, and a parenting program. In addition, they remain engaged in family counseling at Child & Family Services and have cooperated with preventive services".

At a court appearance on the extension petition, the court expressed its concern that the two children had been returned home and ordered an investigation by a social worker. As a result of that investigation, the court concluded that the two children should be removed immediately from the home and returned to the custody of petitioner. A hearing was held forthwith at which two witnesses for petitioner testified that respondent had successfully completed the mandated programs that were part of her child services plan. The social worker testified, however, that his investigation revealed that Vance B. was imposing excessive corporal punishment on Curtis, who was then seven years old. Specifically, the social worker testified that Curtis was made to do an excessive number of pushups as punishment, as much as 200 at a time. Curtis told the social worker, however, that the pushups were "fun", and Curtis did not exhibit any signs of physical injury or trauma. There was no indication of how often Curtis was made to do pushups. Vance B. admitted that Curtis did pushups as part of an exercise regimen and testified that Curtis was not made to do more than 50 pushups at a time.

The court concluded that respondent and Vance B. had not "gained sufficient insight into their actions...