State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 19, 2015 519112 

________________________________

In the Matter of MAURIZIO XX.,

Petitioner,

v

MEMORANDUM AND JUDGMENT

NEW YORK STATE OFFICE OF

CHILDREN AND FAMILY

SERVICES et al.,

Respondents.

________________________________

Calendar Date: January 15, 2015

Before: Lahtinen, J.P., Garry, Devine and Clark, JJ.

__________

Reynold A. Mauro, Commack, for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M.

Arnold of counsel), for respondents.

__________

Devine, J.

Proceeding pursuant to CPLR article 78 (transferred to this

Court by order of the Supreme Court, entered in Albany County) to

review a determination of respondent Office of Children and

Family Services which denied petitioner's application to have a

report maintained by the Central Register of Child Abuse and

Maltreatment amended to be unfounded and expunged.

In July 2012, as petitioner was bathing his two-year-old

son, he struck the child on the left buttock with his hand to

discipline the child for eating soap. The following day, having

realized that the child's buttock was bruised, petitioner

explained what had happened to the child's day-care provider who,

in turn, reported the incident to the Central Register of Child
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Abuse and Maltreatment. Respondent Suffolk County Department of

Social Services conducted an investigation and the report was

subsequently marked as "indicated" for maltreatment due to

inadequate guardianship and excessive corporal punishment. 

Petitioner submitted a request to respondent Office of Children

and Family Services to amend the report from indicated to

unfounded, which request was denied. Thereafter, following an

administrative hearing conducted pursuant to Social Services Law

§ 422 (8) (b), the Administrative Law Judge determined that the

maltreatment allegation was supported by a preponderance of the

evidence and that the indicated report may be disclosed to

inquiring agencies pursuant to Social Services Law § 424-a. 

Petitioner commenced this CPLR article 78 proceeding seeking to,

among other things, annul respondents' determination that he

engaged in maltreatment. 

"'At an administrative hearing to determine whether a

report of child abuse or maltreatment is substantiated, the

allegations in the report must be established by a fair

preponderance of the evidence'" (Matter of Timothy G. v New York

State Off. of Children & Family Servs., 121 AD3d 788, 789 [2014],

quoting Matter of Marie A.P. v Nassau County Dept. of Social

Servs., 100 AD3d 1003, 1003-1004 [2012]; see Matter of Lee TT. v

Dowling, 211 AD2d 46, 49 [1995], affd 87 NY2d 699 [1996]). 

Specifically, "'[t]o establish that maltreatment occurred, the

agency must show 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'" (Matter of Stephen C. v Johnson, 39 AD3d

932, 933 [2007], lv denied 9 NY3d 804 [2007], quoting Matter of

Tonnette E. v New York State Off. of Children & Family Servs., 25

AD3d 994, 995 [2006]; see 18 NYCRR 432.1 [b] [1]; Matter of

Cheryl Z. v Carrion, 119 AD3d 1109, 1110 [2014]). In our

consideration of the underlying determination, "our focus is

whether the determination is rational and supported by

substantial evidence" (Matter of Steven A. v New York State Off.

of Children & Family Servs., 307 AD2d 434, 435 [2003] [internal

quotation marks and citation omitted]; see Matter of Cheryl Z. v

Carrion, 119 AD3d at 1110; Matter of Susan XX. Tioga County Dept.

of Social Servs., 74 AD3d 1543, 1543-1544 [2010]). 
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Petitioner testified that, after he spanked the child, the

child cried briefly, and then the family resumed their normal

evening activities. The father explained that the impression

left on the child's buttock had been exacerbated by the

sensitivity of the child's skin to the hot bath water and,

further, that the child did not complain of pain or appear to be

negatively affected by the incident. The record shows that

petitioner was clearly remorseful and cooperated fully with

Department of Social Services investigators. Petitioner attended

an anger management workshop and a parenting course, which

petitioner acknowledged were helpful and encouraged him to adopt

age-appropriate methods of child discipline. Moreover,

petitioner's spouse indicated that she had never observed

petitioner engaged in excessive corporal punishment and that she

and petitioner normally placed their children in a "time out"

when invoking discipline inside the home. 

A parent is "entitled to use reasonable physical force to

promote discipline" (Matter of Collin H., 28 AD3d 806, 809

[2006]), however, the application of such force may not "exceed[]

the threshold of reasonableness" (Matter of Anthony C., 201 AD2d

342, 342-343 [1994]). Although a single instance of excessive

corporal punishment can suffice for a finding of maltreatment

(see Matter of Vincent KK. v State of N.Y. Off. of Children &

Family Servs., 284 AD2d 777, 777 [2001]), here, the record lacks

substantial evidence demonstrating that petitioner's conduct

"impaired or was in imminent danger of impairing [the child's]

physical, mental or emotional condition" (Matter of Hattie G. v

Monroe County Dept. of Social Servs., Children's Servs. Unit, 48

AD3d 1292, 1293-1294 [2008]; see Matter of Matthew WW. v Johnson,

20 AD3d 669, 671 [2005]; compare Matter of Collin H., 28 AD3d at

808-809; Matter of Castilloux v New York State Off. of Children &

Family Servs., 16 AD3d 1061, 1062 [2005], lv denied 5 NY2d 702

[2005]). 

Lahtinen, J.P., Garry and Clark, JJ., concur.
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ADJUDGED that the determination is annulled, without costs,

and petition granted.

ENTER:

Robert D. Mayberger

Clerk of the Court