Amanda T. (hereinafter "respondent mother") is the mother of the two subject children, Janiyah T., born July 22, 2004 and Kamiyah C., born September 27, 2007. Lateek C. (hereinafter "respondent father") is the father of Kamiyah and a person legally responsible for Janiyah. On January 30, 2007, at approximately 11:30 PM, New York City Children's Services (hereinafter "NYCCS") removed the subject children from the care of the respondents without a court order pursuant to Family Court Act § 1021.

On February 1, 2008, NYCCS filed abuse petitions against both respondents. The petitions allege that, on or about January 30, 2007, respondent father inflicted excessive corporal punishment on Janiyah causing marks, bruises and two black eyes. Further, the petitions allege that in November 2007, respondent father hit Janiyah with a belt in the face causing bruising. In addition, the petitions allege that respondent mother failed to provide adequate care and supervision for Janiyah by allowing respondent father to remain in the home with the children after November 2007 when she learned that he had beaten Janiyah. Finally, the petitions allege that Kamiyah is a derivatively abused and neglected child by virtue of the abuse of Janiyah.

On the day the petitions were filed, this Court granted the request of NYCCS for a remand of the children. Thereafter, respondent mother requested a Family Court Act § 1028 hearing seeking the immediate return of the children. The matter was resolved without a hearing by JHO Staton and the children were paroled to respondent mother on the condition that she comply with Family Preservation Program (FPP) services, complete parenting skills and anger management programs and enforce the temporary order of protection entered against respondent father. The temporary order of protection excluded respondent father from the home, directed that he not commit any family offenses against either child and that he stay away from Janiyah. He was granted supervised visitation with Kamiyah.

LEGAL ANALYSIS

Respondent was a Person Legally Responsible for the Care of the Child Janiyah

The Family Court Act provides that a "person legally responsible" for a child "includes the child's custodian, guardian, or any other person responsible for the child's care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child" (Family Ct Act § 1012 (g) ) . A "person legally responsible" is a parent or one acting in [*2]loco parentis (Matter of Jessica C., 132 Misc 2d 596, 600 (Fam Court, Queens County1986) ) .^[FN1]

In determining whether a respondent is "person legally responsible" under the statute, the court must consider such factors as the frequency and nature of the contact between the child and the respondent, the nature and extent of control exercised by the respondent over the child's environment, the duration of the respondent's contact with the child, and respondent's relationship to the child's parent (In re Yolanda D., 88 NY2d 790 (1996) ) . A respondent will be deemed a "person legally responsible" even if he is not a parent, where, as here, he periodically resided in the same household as the child and was otherwise found at regular intervals in the same home and was involved in the ongoing care of the child (Matter of Johnnie S., 272 AD2d 472 (2d Dept 1998) ; Matter of Devon W., 9 AD3d 830 (4th Dept 2004) ) .

In the instant case, Janiyah resided with respondent father for extended periods prior to the time the petitions were filed. During those periods, he was repeatedly found in the same household as the child and was involved in Janiyah's daily care, supervision and discipline. He cared for her when respondent mother was not home. She called him "Daddy." Respondent father testified that during 2007, the parties resided together with both children at the homes of various family members, including the maternal grandmother and the paternal grandfather. The Court finds these facts sufficient to establish that respondent father was a "person legally responsible" for the care of Janiyah.

2.NYCCS has Established a Prima Facie Case of Neglect, not Abuse, against Respondent Father / Person Legally Responsible as to Janiyah

A parent or person legally responsible is liable for the abuse of a child pursuant to Family Court Act § 1012 (e) (i) or (e) (ii) , when either they inflict or allow to be inflicted upon such[*3]child, physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or create or allow to be created a substantial risk of physical injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement or the protracted impairment of physical or emotional health or the protracted loss or the impairment of the function of any bodily organ.

The Family Court Act defines a neglected child as "one whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of (respondent) to exercise a minimum degree of care" (Family Ct Act § 1012 (f) (i) ) . The physical impairment referred to in FCA § 1012 (f) (i) involves a lower threshold of resultant harm than the serious physical injury required in abuse cases (In re Joshua R., 47 AD3d 465 (1st Dept 2008) , lv denied 11 NY3d 703 (2008) (findings of abuse were not supported by the evidence as respondent did not inflict an injury to his son which caused or created a substantial risk of death or protracted impairment of physical or emotional health, however, neglect was established where, after the child refused to eat, respondent shoved the food into his mouth, causing him to vomit, and then slapped him in the face with enough force to bloody his nose and bruise his eye) ; Matter of Colleen P., 148 AD2d 782 (3d Dept 1985) ; Matter of Maroney v Perales, 102 AD2d 487 (3d Dept 1984) ) .

The neglect statute establishes a minimum baseline of proper care for children and under this standard parental behavior is evaluated objectively according to how a reasonable and prudent parent would have acted. A parent must exercise this minimum degree of care so as not to place the child at imminent risk of impairment (Matter of Jessica YY., 258 AD2d 743 (3d Dept 1999) ) . In order to establish neglect, NYCCS must show by a preponderance of the credible evidence that the child has been harmed or threatened with harm. In the absence of such proof, the statutory requirement of impairment or imminent danger of impairment will not be satisfied and neglect will not be established (see Matter of William EE.,157 AD2d 974 (3d Dept 1990) ) .

NYCCS is not required to prove a course of conduct. It is well-settled that a single incident may be sufficient to establish neglect where a parent fails to exercise reasonable care and as a result the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired (In re Pedro C., 1 AD3d 267 (1st Dept 2003) (rejecting respondent's contention that a single incident is insufficient to establish neglect where the parent's judgment was impaired and the child was exposed to a risk of substantial harm as a result) ; In re Sheneika V., 20 AD3d 541 (2d Dept 2005) (although a single incident may suffice to sustain a finding of neglect where the father choked the child in response to a dispute over washing the dishes, here there was proof of a pattern of the father's use of excessive corporal punishment) ) .

This is particularly true where the parent was aware or should have been aware of the intrinsic danger of their actions and the situation (In re Lester M., 44 AD3d 944 (2d Dept 2007) ; Matter of Victoria CC., 256 AD2d 931 (3d Dept 1998) (a single incident may be sufficient to constitute child neglect and an isolated accidental injury may constitute neglect if the parent was aware or should have been aware of the intrinsic danger of the situation and leaving a nine-month-old child unattended in a bathtub is intrinsically dangerous and manifests an appalling lack of judgment that placed the child in substantial risk of harm) ) .

Respondent Father Neglected Janiyah

In the instant case, the credible evidence adduced during fact-finding established that respondent father hit Janiyah on two separate occassions, twice leaving a bruise or other marks on her face. Nevertheless, since the unimpeached expert testimony of Dr. Hosneara Masub, M.D. established that the dark marks around Janiyah's eyes were not the result of inflicted trauma — but instead an allergic reaction — NYCCS has failed to establish that respondent father inflicted injuries which "created a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ." The evidence does, however, establish the lower threshold of harm required to sustain a finding of neglect.

It is undisputed that in November 2007, respondent father hit Janiyah with a belt in the face causing bruising. According to respondent father's testimony, the child, then three years old, was disrespectful and unresponsive to his efforts to speak with her. Nevertheless, he testified that he did not mean to hit her in the face and that he only meant to hit her with the belt on her hand. He stated that he hit her in the face with the belt when she moved. Apparently, he did not expect that she would move.

It is the view of this Court, that these actions were inconsistent with how a reasonable and prudent parent would have acted under the circumstances and that, as a result, the child's physical, mental and emotional condition where impaired or placed at imminent risk of impairment. A reasonably prudent parent under these circumstances would not have struck a three-year-old child with a belt with sufficient force to leave marks. Even if the Court were to accept respondent's assertions that he hit the child with the belt in the face by accident and that he only meant to hit her on the hand, the result would be the same since the force used was excessive and it resulted in marks on the child's face and fear of respondent father. In addition, the risk that a three year old would move when she is threatened with a belt and therefore sustain bruising on some other part of her body is something that respondent knew or should have known was one of the inherent dangers of hitting a small child with a belt.

Janiyah also described a second incident when respondent father again hit her in the face.^[FN2] Janiyah told the NYCCS caseworker that the second incident occurred on January 30, 2008. She said that during the second incident, respondent father hit her in the face, legs and back. The child's out of court statements are adequately corroborated by the caseworker's testimony describing the [*4]bruise on the child's nose. The statements are further corroborated by the caseworker's testimony about the child's fearful and distressed reaction when she realized that they were driving near respondent father's home.

Janiyah's statements are also corroborated by the testimony of Dr. Hosneara Masub, M.D. Dr. Masub was subpeoned by NYCCS, however, after she appeared in court and was interviewed by counsel, NYCCS decided not to actually call her. Instead, Dr. Masub was called as respondent father's witness and without objection was qualified as an expert in pediatric medicine. She testified that she saw the child on February 12, 2008. She testified that she observed the mark on Janiyah's face as well as the dark circles around her eyes. She testified, however, that in her opinion, within a reasonable degree of medical certainty, the dark marks under the child's eyes were the result of an allergic reaction — not inflicted trauma. According to Dr. Masub, the other mark on the child's face was not the result of an allergic reaction. Her testimony was unrebutted.

Respondent father asserts that Dr. Masub's testimony undermines the child's credibility and supports his claim that the second beating did not occur. The Court rejects this assertion. Although Dr. Masub's testimony establishes that the January 30, 2008 incident did not cause the dark circles under the child's eyes, it did not establish that the incident never occurred. In fact, the doctor's testimony provides additional corroboration for the child's statement that respondent father hit her and caused a mark on her face. In the Court's view, these incidents are sufficient to establish by a preponderance of the evidence that Janiyah's physical, mental or emotional condition were impaired or placed at imminent danger of impairment sufficient to establish neglect based on excessive corporal punishment. Accordingly, the allegations of abuse are dismissed and pursuant to Family Court Act § 1051 (b) ,^[FN3] the Court amends the petitions to conform to the proof and enters a finding of neglect pursuant to Family Court Act § 1012 (f) (i) (B) .

Respondent Mother Neglected Janiyah

In the instant case, respondent mother was out of the home in November 2007, when respondent father hit three-year-old Janiyah in the face with a belt leaving a mark. Upon her return home, both respondent father and Janiyah told her about what happened. Despite that knowledge, she failed to take any action to protect Janiyah and ensure that respondent father did not strike her again.

Furthermore, when respondent mother was first interviewed by NYCCS, she denied that the 2007 incident had taken place. Likewise, when Janiyah was first interviewed, she was reluctant to reveal what had happened. She told the caseworker that it was "a secret" and that "Mommy told me not to tell the truth." Respondent mother did not testify at the fact-finding hearing. Accordingly, the Court draws the strongest negative inference against her that the evidence will permit, that is, that [*5]she realized Janiyah was at risk when she was with respondent father but failed to immediately take the necessary steps to protect her (Matter of Cantina B., 26 AD3d 327 (2d Dept 2006) ) .

Since the allegations of abuse by respondent father have been dismissed, the allegations that respondent mother failed to protect Janiyah from abuse are likewise dismissed. Nevertheless, pursuant to Family Court Act § 1051 (b) , the Court amends the petitions to conform to the proof and enters a finding of neglect against respondent mother pursuant to Family Court Act § 1012 (f) (i) (B) based on her failure to take appropriate steps after the November 2007 incident to protect her daughter from future acts of excessive corporal punishment inflicted by respondent father.

NYCCS has Established a Prima Facie Case of Derivative Neglect against Respondent Father as to Kamiyah but not against Respondent Mother

Family Court Act § 1046 (a) (i) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of ... the respondent." Even in the absence of direct evidence of actual abuse or neglect of a second child, a derivative finding may be made where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care, thereby making such a child neglected under Family Court Act § 1012 (f) (i) (B) (Matter of Christina Maria C., 89 AD2d 855 (2d Dept 1982) ; Matter of Dutchess County Dept. of Social Services on Behalf of Noreen K.,242 AD2d 533 (2d Dept 1997) ) .

Nevertheless, although the statute requires that evidence as to the neglect of one child be considered on the issue of the neglect of another child in the home, such evidence is not conclusive and does not establish a prima facie case of neglect of another child in the parent's care (In re Abigail S.,21 AD3d 380 (2d Dept 2005) ; Matter of Rasheda S., 183 AD2d 770 (2d Dept 1992) ) . In other words, the fact that one child has been neglected, standing alone, is insufficient without more to support a finding that the child's sibling is also neglected (see e.g., Matter of Randy AA., 265 AD2d 690 (3d Dept 1999) ) .

The determinative factor is whether the nature of the neglect, notably its duration and the circumstances surrounding its commission evidences such a fundamental flaw in respondent's understanding of the duties of parenthood that it can reasonably be concluded that the condition still exists (Matter of Dutchess County Dept. of Social Services on Behalf of Noreen K.,242 AD2d 533, supra) . Unless the underlying finding provides a reliable indicator that the sibling's physical, mental or emotional condition is in imminent danger of becoming impaired a finding of derivative neglect cannot stand (Matter of Suzanne RR.,35 AD3d 1012 (3d Dept 2006) ) . In considering whether to enter a derivative finding, the courts have considered and attempted to balance a number of somewhat overlapping factors. Included among them are the following:

Whether the Underlying Neglect was Based on a Single Incident or a Course of Conduct

This factor is considered since it is presumed that the more longstanding the underlying misconduct, the more probative it is of respondent's ability to provide adequate care to any child in [*6]the home (compare Matter of Amanda R., 209 AD2d 702 (2d Dept 1994) (no basis for a derivative finding with respect to a sibling of the target child since a single incident of child maltreatment standing alone does not establish a prima facie case of derivative neglect) ; In re Samuel Y., 270 AD2d 531 (3d Dept 2000) (no basis for a derivative neglect finding with respect to a sibling of the target child since the single incident when the parent struck the target child in the face was insufficient to prove that the parent manifested such an impaired level of judgment as to create a substantial risk of harm for any child in respondent's care) ) , with Matter of Eli G., 189 AD2d 764 (2d Dept 1993) (respondent's abuse of his son by beating him with an electrical cord was sufficient to establish derivative abuse where the beating was not an isolated incident but a pattern of discipline that the respondent felt was justified) ; In re Vincent L., 46 AD3d 395 (1st Dept 2007) , lv denied 10 NY3d 706 (2008) (respondent's sexual abuse of four children under the age of 14 with whom he had a paternal relationship over the course of three years demonstrated such an impaired level of parental judgment as to create a substantial risk of harm to the remaining children in his care) ; Matter of Jasmine A., 18 AD3d 546 (2d Dept 2005) (evidence that one child was sexually and physically abused and that two of her brothers were physically abused constituted sufficient evidence to support a finding of derivative neglect as to the remaining children since respondent's conduct demonstrated a fundamental defect in his understanding of parental duties relating to any other children in his care) ; Matter of the Dutchess County Department of Social Services o /b /o Douglas E., 191 AD2d 694 (2d Dept 1993) (respondent's admission that he repeatedly sexually abused his 10-year-old daughter over a period of five or six months supported a derivative neglect finding as to respondent's son) ; Matter of Andrew B., 49 AD3d 638 (2d Dept 2008) , lv denied 10 NY3d 714 (2008) (parent's repeated fabrications as to the child's medical condition, which required unnecessary medical treatments and the withdrawal of the child from school, demonstrated fundamental flaws in her understanding of the duties of parenthood sufficient to warrant a finding of derivative neglect with respect to the other child in the home) ) .

How Serious were the Underlying Acts of Abuse or Neglect and what Role did the Respondent Play

This factor is considered since it is assumed that the more serious the underlying misconduct, the more probative it is of respondent's ability to provide adequate care to any child in the home. Accordingly, where the underlying finding is based on acts of physical or sexual abuse by the parent, derivative findings are frequently made irrespective of whether or not there is evidence of direct abuse or neglect of other children in the home (see e.g., In re Christopher W., 299 AD2d 268 (1st Dept 2002) (the nature and severity of the direct abuse, involving a bathtub scalding of a child resulting in death warranted a finding of derivative abuse even absent evidence of direct abuse of the other children) ; Matter of Jorge S., 211 AD2d 513 (1st Dept 1995) lv denied 85 NY2d 810 (1995)(an unexplained fracture sustained by one child supported a finding of derivative neglect as to other children in the home) ; Matter of Christina Maria C.,89 AD2d 855 (2d Dept l982) (one-year-old was found to be a derivatively neglected based upon the physical abuse of the child's seven-year-old half-brother) ; Matter of Rasheda S., 183 AD2d 770 (2d Dept 1992) (the sexual abuse of a stepdaughter supported a derivative finding of neglect as to an eleven-year-old daughter since the direct abuse demonstrated a fundamental defect in respondent's understanding of the duties of parenthood) ; Matter of the Dutchess County Department of Social Services o /b /o Douglas E., 191 AD2d 694 (2d Dept 1993) (direct evidence is not necessary to sustain a derivative neglect [*7]finding as to respondent's son where he admitted that he repeatedly sexually abused his 10-year-old daughter) ) .

Where the underlying finding is based on excessive corporal punishment, derivative findings are made if the duration and seriousness of the original incident evidence such a fundamental flaw in respondent's understanding of the duties of parenthood that it can reasonably be concluded that the condition still exists (In re Joshua R., 47 AD3d 465 (1st Dept 2008) , lv denied 11 NY3d 703 (2008) (findings of derivative neglect entered where, after the child refused to eat, respondent father shoved the food into his mouth causing vomiting and then slapped him in the face causing a bloody nose and bruised eye) ; Matter of Eli G., 189 AD2d 764 (2d Dept 1993) (respondent's beating of his son with an electrical cord resulting in bruises and lacerations was sufficient to establish derivative abuse where the beating was not an isolated incident but a pattern of discipline that the respondent felt was justified) ; Matter of Pierre M., 239 AD2d 262 (1st Dept 1997) (respondent hitting her 15-year-old daughter in the head with a wooden table leg with a nail protruding causing lacerations requiring stitches supported a derivative finding) ; Matter of Dareth O., 304 AD2d 667 (2d Dept 2003) ) .^[FN4]

Whether the Conditions Leading to the Underlying Finding have Changed and Whether the Parent has Completed all Recommended Services

Since the determinative factor is whether the underlying abuse or neglect evidences a fundamental flaw in respondent's understanding of the duties of parenthood sufficient to support the conclusion that a risk to the other children continues to exist, another factor the courts have[*8]considered is whether the parent has suceeded in overcoming the problems leading to the original finding (Matter of Jeremy H., 193 AD2d 799 (2d Dept 1993) (a four-year-old sex abuse finding justified a derivative finding where respondent had still not addressed the original problem) ; In re Krystal J., 267 AD2d 1097 (4th Dept 1999) (a derivative finding of neglect was proper where respondent failed to address the problems that led to the original finding) ; Matter of Amber C., 38 AD3d 538 (2d Dept 2007) , appeal dismissed, 11 NY3d 728 (2008) (prior findings of neglect entered before the subject child's birth supported a finding of derivative neglect since the parents failed to complete the programs required by the prior orders of disposition) ; Matter of Tradale CC.,52 AD3d 900 (3d Dept 2008) (a derivative finding was entered where respondent continued to use excessive corporal punishment to such a degree that her contact with the children had to be supervised and she failed to obtain mental health counseling or complete an alcohol treatment program or parenting classes as ordered) ) .

In considering whether to enter a finding of derivative neglect against a parent who failed to adequately protect a child from another parent's use of corporal punishment, courts have also considered whether the conditions leading to the underlying finding have changed and whether the parent has completed all recommended services (compare Matter of Nina A. M., 189 AD2d 1010 (3d Dept 1993) (having taken appropriate steps to protect the children from respondent father's abusive behavior and rehabilitate herself by separating from him, moving to a new city, starting a new life and undergoing psychological counseling, respondent's conduct and actions were those of a reasonable and prudent parent) , with Matter of Brent HH., 309 AD2d 1016 (3d Dept 2003) , lv denied 1 NY3d 506 (2004) )

(where respondent grandmother's live-in boyfriend chased one child from the home seriously injuring him by breaking his arm and kicking the child's mother, a finding of derivative neglect was made against respondent grandmother with respect to other children in her care since she minimized the boyfriend's conduct, took no steps to protect the children from further violence and saw no need for services) ) .

Another related issue is whether the underlying incident is proximate in time. This factor is considered since it is presumed that the more recent the underlying misconduct, the more probative it is of respondent's current ability to provide adequate care to another child in the home (Matter of Maureen G., 103 Misc 2d 109 (Fam Ct, Richmond County 1980) (proof of abuse or neglect must be so proximate in time that it can reasonably be concluded that the condition is a current one that still exists) ; Matter of Baby Boy W., 283 AD2d 584 (2d Dept 2001) (a derivative finding was made where the subject child was born two months after the prior incident) ) . Nevertheless, the dispositive issue remains the respondent's current parenting abilities. Accordingly, proximity in time is less relevant than whether—during the intervening period— respondent has overcome the problems leading to the underlying finding (In re Summer Y.-T., 32 AD3d 212 (1st Dept 2006) (a three-year-old finding did not support a derivative neglect finding where the parents were participating in mandated counseling services and adequately preparing for the youngest child's birth) ; In re Kadiatou B.,52 AD3d 388 (1st Dept 2008) , lv denied 12 NY3d 701 (2009) )

(a seven-year-old finding based on the death of a three-month-old did not support a derivative finding given the length of time that had passed, the positive changes in the parents' behavior observed by social workers and the agency caseworker and NYCCS's discharge of one of the children from foster care without a court order since that decision "clearly manifest the Agency's [*9]belief that the parents have overcome whatever problems existed in the past, are capable of caring for a child and are not exhibiting any fundamental defect in judgment") ) .

Whether there is Direct Evidence that the Other Children in the Home were Actually Harmed or Placed at Imminent Risk of Harm

Since the issue is whether a risk to the other children continues to exist, another factor the courts have considered is whether there is evidence that those children were actually harmed or placed at imminent risk of harm. Addessing this question a number of courts have declined to enter derivative findings concluding that there was no evidence regarding the other children and that the duration and seriousness of the original neglect did not support the conclusion that they were at risk (Matter of Justin O., 28 AD3d 877 (3d Dept 2006) (mother's failure to protect one child from excessive corporal punishment did not establish that the other children were derivatively neglected since there was no evidence that any other child was struck or that their physical, mental or emotional condition was impaired or in danger of becoming impaired as a result of the incident) ; Matter of Daniella HH., 236 AD2d 715 (3d Dept 1997) (no derivative neglect where the underlying finding was based on the medical neglect of an infant who had health problems from birth and was admitted to the hospital suffering from failure to thrive) ; In re Jocelyne J., 8 AD3d 978 (4th Dept 2004) (no derivative neglect where the underlying finding was based on the fact that respondents, having raised a child as their own, sent her back to Haiti without making arrangements for her to return since those actions did not provide a reliable indicator that the second child was at substantial risk of harm, the child's attorney opposed a derivative finding and respondents cared for the second child appropriately) ; In re Julia BB., 42 AD3d 208 (3d Dept 2007) , lv denied 9 NY3d 815 (2007) (even if the "target" child had been abused no derivative finding should have been entered where there was no evidence that the other children's physical, mental or emotional well-being was impaired or in danger of becoming impaired, the other children thrived in respondents' care and respondents were attentive and loving parents who attended all recommended evaluations and examinations and ensured that the children's immunizations were kept up to date) ; Matter of Andrew B.-L., 43 AD3d 1046 (2d Dept 2007) (no derivative neglect in the absence of evidence that the mother used excessive corporal punishment against the other children) ; In re Shawndel M., 33 AD3d 1006 (2d Dept 2006) (although the mother's conduct in encouraging the child to decline medical treatment and leave the hospital, placed the child in imminent danger of impairment, the finding of derivative neglect was unsupported since there was no showing that respondent's actions placed the sibling at imminent risk) ) .

Other courts have concluded that a finding of derivative abuse or neglect is warranted without direct evidence of actual maltreatment of the other children in the home, finding that the duration and circumstances surrounding the original finding evidence such a fundamental flaw in respondent's understanding of the duties of parenthood as to support the conclusion that any child in their care would be at imminent risk of harm (see e.g., In re Ramsay M., 17 AD3d 678 (2d Dept 2005) (the sexual abuse of one child by respondent was sufficient to establish that the other child was derivatively neglected even in the absence of direct evidence of actual abuse or neglect of the second child, since the evidence as to the directly abused child demonstrated such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care) ; In re Christopher W., 299 AD2d 268 (1st Dept 2002) (the nature and severity of the direct abuse—a bathtub scalding resulting in death—warranted a finding of derivative abuse, even absent evidence [*10]of direct abuse of the other children) ; Matter of the Dutchess County Department of Social Services o /b /o Douglas E., 191 AD2d 694 (2d Dept 1993) (direct evidence is not necessary to sustain a derivative neglect finding as to respondent's son where he repeatedly sexually abused and sodomized his 10-year-old daughter) ; Matter of Eli G., 189 AD2d 764 (2d Dept 1993) (respondent's beating of his son with an electrical cord causing bruises and lacerations was sufficient to establish derivative abuse even in the absence of direct evidence of abuse of the other children where the beating was not an isolated incident and respondent felt his actions were justified) ; In re Kristina R., 21 AD3d 560 (2d Dept 2005) , lv denied 5 NY3d 717 (2005) (even in the absence of direct evidence of neglect of the second child, a derivative finding should be made where the evidence as to the directly neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care) ) .

The Instant Case

Application of these factors to the case at bar, leads this Court to conclude that respondent father derivatively neglected Kamiyah, although respondent mother did not. In reaching this conclusion, the Court has considered each of the factors outlined above in light of the testimony and documentary evidence introduced.

First, the Court has considered that the underlying neglect is based on acts of commission by respondent father. Second, the Court has considered that the excessive corporal punishment inflicted by respondent father upon the three-year-old subject child was fairly serious and in response to minor infractions. Third, the Court has considered that the punishment inflicted by respondent father was not an isolated incident but a pattern that he believed was justified. During the fact-finding, he testified that he struck the child because "children should not be disrespectful of adults" and "that was how I was brought up." In the Court's view, he failed to take full responsibility for his actions. Instead, he blamed the child and continued to believe that his actions were justified. Forth, although the underlying finding is based on incidents that occurred in January 2008 and November 2007 — 24 and 21 months prior to the conclusion of the fact-finding hearing — respondent father introduced no evidence of his rehabilitation. Indeed, despite the passage of time, respondent father still has not addressed — let alone overcome — the problems that led to the filing of the original petition. In fact, at the time that the fact-finding concluded, he had not even started parenting skills or anger management — let alone completed them.

It is the view of this Court that the duration, seriousness and other circumstances surrounding the original neglect evidence a fundamental flaw in respondent father's understanding of the duties of parenthood to the extent that it can reasonably be infered that the conditions that led to the underlying incident still exist. Accordingly, even without direct evidence of neglect as to Kamiyah, the Court finds that her physical, mental or emotional condition are at risk of impairment while she is in the care of respondent father.

In contrast, NYCCS has failed to introduce sufficient evidence to establish a prima facie case of derviative neglect against respondent mother. In reaching this conclusion, the Court has considered that the underlying neglect by respondent mother is not based her physical or sexual abuse of the child; nor is it based on her inflicting excessive corporal punishment. [*11]

In addition, the Court has considered that the underlying neglect finding against respondent mother is not based on a course of conduct. Instead, it is based on a limited incident when she failed protect Janiyah from further acts of corporal punishment despite her knowledge of the November 2007 incident.

Further, the Court has considered that respondent mother's circumstances have changed significantly during the last two years. During that time, respondent mother has separated from respondent father and cooperated with all orders entered by this Court. The children have been home with her since March 12, 2008. Since then, the children have been well cared for and there have been no further incidents. The children have been described as clean and well-dressed. They have had no bruises or other signs of maltreatment. They have reported that their mother takes good care of them.

Moreover, the Court has considered that respondent mother has fully cooperated with services. In fact, by April 2009, she had completed a 12-week parenting skills program and a 12-week anger management program at Community Counseling and Mediation. On October 12, 2009, after respondent father came to her home in violation of the Court's order, respondent mother contacted the police and thereafter sought an order of protection against him. By October 28, 2009, she had fully complied with FPP services.

In other words, the circumstances surrounding the original neglect do not evidence a fundamental flaw in respondent mother's understanding of the duties of parenthood. Although respondent mother's conduct toward her daughter Janiyah fell below a minimum degree of care when she failed to take action to protect her after the November 2007 incident, her conduct on that occasion is not a reliable indicator that any other child in her care is at imminent risk of impairment. Indeed, the evidence adduced is to the contrary and the Law Guardian supports the dismissal of the derivative allegations.

Finally, the Court rejects any suggestion that respondent mother's failure to testify requires a different result. Although her failure to testify warrants the drawing of the strongest negative inference that the evidence will allow (Matter of Antonio NN., 28 AD3d 826 (3d Dept 2006) ; Matter of Evan Y., 307 AD2d 399 (3d Dept 2003) ) , that inference cannot provide a missing element of proof where it otherwise does not exist (Matter of Kayla F., 39 AD3d 983 (3d Dept 2007) ; In re Jared X.X., 276 AD2d 980 (3d Dept 2000) ) . In the instant case, the mother's failure to testify is insufficient to establish derivative neglect since the underlying finding does not provide a reliable indicator that Kamiyah's physical, mental or emotional condition is in imminent danger of becoming impaired.

For each of the forgoing reasons, it is

ORDERED, that pursuant to Family Court Act § 1051 (b) , the petitions are amended to conform to the proof, the allegations of abuse are dismissed, and a finding of neglect is entered against respondent father based on acts of excessive corporal punishment against the subject child Janiyah; and it is further

ORDERED, that pursuant to Family Court Act § 1051 (b) , the petitions are amended to conform to the proof, the allegations of abuse are dismissed, and a finding of neglect is entered against respondent mother for her failure to take appropriate steps after the November 2007, incident to protect her daughter from future acts of excessive corporal punishment; and it is further [*12]

ORDERED, that the subject children are released to respondent mother under NYCCS supervision October 28, 2010; and it is further

ORDERED, a finding of derivative neglect is entered against respondent father with respect to Kamiyah; and it is further

ORDERED, that the allegations of derivative neglect as to respondent mother regarding Kamiyah are dismissed; and it is further

ORDERED, that respondent mother shall maintain suitable housing and a verifiable means of support; and it is further

ORDERED, that respondent mother shall enforce the temporary order of protection against respondent father which excludes respondent father from the home, directs that he not commit any family offenses against her or the children and directs that he stay away from both of the children except for court-ordered visitation with Kamiyah.

DATED:January 7, 2010E N T E R:

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EMILY M. OLSHANSKY, J.F.C.