        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

980
CAF 14-01117
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF CHRISTIAN J.S.,
NATHANIEL C.S., JACOB C.S., HEAVEN A.S.
AND ISAAC S.S.
---------------------------------------           MEMORANDUM AND ORDER
JEFFERSON COUNTY DEPARTMENT OF SOCIAL
SERVICES, PETITIONER-RESPONDENT;

JODI A.F., RESPONDENT-APPELLANT.


PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT.


     Appeal from an order of the Family Court, Jefferson County
(Richard V. Hunt, J.), entered March 27, 2014 in a proceeding pursuant
to Family Court Act article 10. The order determined that respondent
had neglected her children and continued custody of the children with
their father.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, and the petition is
dismissed.

     Memorandum: On appeal from an order that, inter alia, found that
she neglected her five children and granted permanent custody of the
children to their father, respondent mother contends that Family Court
erred in denying her motion to dismiss the petition at the close of
petitioner’s case. We agree, and we therefore reverse the order and
dismiss the petition.

     We note at the outset that, before the petition in this case was
filed in Lewis County, where the mother had lived in February 2012, a
temporary order was entered pursuant to Family Court Act article 6
granting custody of the children to their father, who resides in
Jefferson County. Because the children were living and thriving with
their father in Jefferson County, where they were receiving services
from petitioner, petitioner moved to withdraw the petition shortly
after it was filed, asserting that no child protective proceedings
were necessary pursuant to Family Court Act article 10. Petitioner
also noted that the mother had moved to Madison County, where it would
be difficult for petitioner to provide services to her and where, as a
Medicaid recipient, the mother could receive services from the
appropriate local agency. The court denied petitioner’s motion,
however, and directed petitioner to proceed with a fact-finding
hearing.
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                                                         CAF 14-01117

     At the hearing, petitioner called only two witnesses, a
caseworker for the Department of Social Services in Lewis County
(Department), where the children lived with the mother and her
boyfriend for a short period before moving in with their father, and
the children’s father. The Lewis County caseworker testified about
the conditions in the residence in Lewis County where the children
were living when he first visited, and acknowledged not only that the
Department had not sought to remove the children from the mother’s
care during the 18 days the children resided in Lewis County, but that
the conditions of the mother’s residence improved after his first
visit. The children’s father testified about the children’s
appearance and lack of hygiene and self-care skills when they moved in
with him, and also relayed reports from his oldest son, then age
eight, that the mother left the younger children at home with him on
occasion, and that he would have to make them meals. The father also
acknowledged, however, that when the children lived with the mother,
he never had any concerns regarding their care.

     After calling those two witnesses, petitioner rested its case.
The mother moved for a directed verdict dismissing the petition,
contending that petitioner’s evidence was legally insufficient to
establish a prima facie case of neglect. The motion was opposed by
the Attorney for the Children and the father, neither of whom, we
note, has filed a respondent’s brief on appeal. The court, although
acknowledging that it was “not comfortable [with the] level of proof”
before it, subsequently denied the motion. That was error.

     For a finding of neglect, there must be proof of actual or
imminent physical, emotional, or mental impairment to a child, and
proof that any such actual or imminent impairment is a “consequence of
the parent’s failure to exercise a minimum degree of parental care”
(Matter of Afton C. [James C.], 17 NY3d 1, 9; see Family Ct Act § 1012
[f] [i]). Here, the children were living with their father for over
two months before the petition was filed, and thus they did not face
“imminent” danger of impairment. Under those circumstances,
petitioner had the burden of demonstrating “actual . . . physical,
emotional or mental impairment to the child[ren]” that resulted in
“serious harm . . . to the child[ren], not just . . . what might be
deemed undesirable parental behavior” (Nicholson v Scoppetta, 3 NY3d
357, 369). In our view, the proof adduced by petitioner, which
concerned only the 18 days the children resided in Lewis County,
failed to meet that burden. The children’s father did not have
firsthand knowledge concerning the allegations in the petition, and he
acknowledged that he never had any concerns about the care of the
children when they resided with the mother. The testimony of the
Lewis County caseworker at most demonstrated that the conditions at
the residence where the children lived and the manner in which they
dressed and attended to hygiene were less than optimal, but it did not
appear that those conditions resulted in any actual physical,
emotional, or mental impairment to the children (see Matter of
Annastasia C. [Carol C.], 78 AD3d 1579,1580, lv denied 16 NY3d 708;
Matter of Erik M., 23 AD3d 1056, 1057; cf. Matter of Holly B. [Scott
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                                                 CAF 14-01117

B.], 117 AD3d 1592, 1592-1593).




Entered:   October 9, 2015              Frances E. Cafarell
                                        Clerk of the Court
