                          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
                              -2-                519112

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]).
                              -3-                519112

      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.
                              -4-                  519112

      ADJUDGED that the determination is annulled, without costs,
and petition granted.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
