## Facts

- A school psychologist evaluated Peter G. over two days in December 1999 after concerns about his behavior and safety.
- Peter reported that his father disciplined him and a sibling by striking them with a cane or belt, but did not state how often this occurred.
- During the evaluation, Peter showed his legs to the psychologist; the psychologist observed no marks.
- The psychologist made a report to the State Central Registry after concluding Peter appeared to feel unsafe.
- An ACS caseworker visited the home and interviewed each child separately; the children expressed fear and described being hit, but accounts were not consistent or specific as to frequency, severity, or resulting injuries.
- The parents denied use of a belt or cane and described discipline as occasional spanking with an open hand; the mother testified she was generally the primary disciplinarian.
- A family member who was a police officer testified he had a close relationship with the children and had never heard complaints of being hit with a cane.
- The record contained no medical evidence or photographs showing injuries attributable to excessive corporal punishment.

## Issues

1. Whether ACS proved by a preponderance of the evidence that the father used excessive corporal punishment constituting neglect under Family Court Act article 10.
2. Whether the mother neglected the children by knowing or having reason to know of excessive corporal punishment and failing to protect them.

## Decision

- The Appellate Division, First Department reversed the Family Court’s fact-finding and dispositional orders to the extent they found neglect.
- The court vacated the fact-finding determination and dismissed the neglect petition.
- The court held the proof did not establish excessive corporal punishment or imminent danger of impairment and therefore could not support a derivative failure-to-protect finding against the mother.

## Legal Principles

- Under Family Court Act article 10, neglect requires proof that a child’s condition has been impaired or is in imminent danger of impairment due to a parent’s failure to exercise a minimum degree of care.
- Corporal punishment is not neglect per se; the petitioner must prove the punishment was excessive in force, frequency, or consequence, such as by resulting injury or other objective indicators of harm or risk.
- Generalized fear and ambiguous, uncorroborated child statements—without specific detail and without medical or other objective evidence—may be insufficient to meet the petitioner’s burden.
- A derivative neglect theory based on failure to protect depends on establishing the underlying neglectful conduct; if the alleged excessive punishment is not proven, a failure-to-protect finding cannot stand.

## Conclusion

The Appellate Division dismissed the neglect petition because ACS did not prove that the father’s discipline was excessive or that the children faced impairment or imminent danger of impairment, and the derivative claim against the mother failed for the same reason.


In re Peter G., 6 A.D.3d 201, 774 N.Y.S.2d 686 (App. Div. 1st Dep’t 2004)