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

932
CAF 10-00960, CAF 10-01045
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF DAMIAN G. AND MADISON G.
--------------------------------------------
ONEIDA COUNTY DEPARTMENT OF SOCIAL SERVICES,      MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

JACQUELYN M. AND CHRISTOPHER G.,
RESPONDENTS-APPELLANTS.


KOSLOSKY & KOSLOSKY, UTICA (WILLIAM L. KOSLOSKY OF COUNSEL), FOR
RESPONDENT-APPELLANT JACQUELYN M.

MARY R. HUMPHREY, NEW HARTFORD, FOR RESPONDENT-APPELLANT CHRISTOPHER
G.

JOHN A. HERBOWY, UTICA, FOR PETITIONER-RESPONDENT.

SUSAN B. MARRIS, ATTORNEY FOR THE CHILDREN, MANLIUS, FOR DAMIAN G. AND
MADISON G.


     Appeals from an order of the Family Court, Oneida County (Joan E.
Shkane, J.), entered April 12, 2010 in a proceeding pursuant to Family
Court Act article 10. The order adjudicated the subject children to
be neglected.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.

     Memorandum: In this proceeding pursuant to Family Court Act
article 10, respondent parents appeal from an order adjudicating their
two children to be neglected. Contrary to the contentions of the
parents, Family Court’s findings of neglect are supported by the
requisite preponderance of the evidence (see § 1046 [b] [i]). With
respect to the mother, petitioner presented evidence establishing that
she neglected the children by, inter alia, attempting to drive a motor
vehicle in an intoxicated condition with the children in the vehicle.
Although the mother vigorously disputed that she was intoxicated,
witnesses testified that, on the evening in question, she exuded a
strong odor of alcohol and was acting in a belligerent and an
irrational manner.

     With respect to the father, the record supports the court’s
determination that he deliberately failed to take anti-seizure
medication so that he could consume alcohol on the day in question,
and that he is aware that he is likely to become violent when he has a
                                 -2-                           932
                                           CAF 10-00960, CAF 10-01045

seizure. The father did in fact suffer two seizures that day and,
when the police responded to an emergency call on his behalf with
respect to the first seizure, the father had the second seizure. The
father did in fact become violent, as he threatened the officers and
repeatedly challenged them to a fight. Although the children were not
home at the time of the first seizure, they were approaching the home
with their mother at the time of the second seizure, and had spent
most of the evening with the father. We therefore conclude that the
father, by deliberately failing to take his anti-seizure medication,
failed to “exercise a minimum degree of care” for his children and
thereby placed them in imminent danger of becoming impaired,
physically, mentally or emotionally (§ 1012 [f] [i]). Although the
father testified that he did in fact take his anti-seizure medication
on the day in question, a caseworker for Child Protective Services
testified that the father admitted to him that he did not do so, and
the court’s determination to credit the caseworker’s testimony over
the father’s testimony is entitled to great deference (see generally
Matter of Irene O., 38 NY2d 776, 777).

     All concur except SMITH, J.P., who dissents and votes to reverse
in accordance with the following Memorandum: I respectfully dissent
because I conclude that petitioner failed to establish that respondent
parents neglected their children. It is well settled that, in order
to establish neglect, petitioner “must show, by a preponderance of the
evidence (see Family Ct Act § 1046 [b] [i]), first, that a child’s
physical, mental or emotional condition has been impaired or is in
imminent danger of becoming impaired and second, that the actual or
threatened harm to the child is a consequence of the failure of the
parent . . . to exercise a minimum degree of care in providing the
child with proper supervision or guardianship” (Nicholson v Scoppetta,
3 NY3d 357, 368).

     “The first statutory element requires proof of actual (or
imminent danger of) physical, emotional or mental impairment to the
child . . . This prerequisite to a finding of neglect ensures that the
Family Court, in deciding whether to authorize state intervention,
will focus on serious harm or potential harm to the child, not just on
what might be deemed undesirable parental behavior. ‘Imminent danger’
reflects the Legislature’s judgment that a finding of neglect may be
appropriate even when a child has not actually been harmed; ‘imminent
danger of impairment to a child is an independent and separate ground
on which a neglect finding may be based’ . . . Imminent danger,
however, must be near or impending, not merely possible” (id. at 369).
Here, there was no allegation of actual harm, and I cannot conclude
that petitioner established that either parent placed the children in
imminent danger of physical, emotional or mental impairment.

     With respect to the father, the majority concludes that “the
record supports the court’s determination that he deliberately failed
to take anti-seizure medication so that he could consume alcohol on
the day in question, and that he is aware that he is likely to become
violent when he has a seizure.” I agree that there is evidence in the
record that supports the majority’s conclusion, and it is well settled
that Family Court’s credibility determinations are entitled to great
                                 -3-                           932
                                           CAF 10-00960, CAF 10-01045

deference (see generally Eschbach v Eschbach, 56 NY2d 167, 173). Even
according the court’s credibility determinations their requisite due
deference, however, I conclude that the finding of neglect with
respect to the father is not supported by the record. At most, the
facts establish that the father knew that there was some unspecified
possibility that he might have a seizure, that he could become violent
if he did so, and that the children might be harmed if they were
present. I thus conclude that the risk that was created by the father
in failing to take his medication and in consuming alcohol was not
sufficiently “near or impending” to support a finding of neglect
(Nicholson, 3 NY3d at 369; see Matter of William EE., 157 AD2d 974,
976).

     Similarly, with respect to the mother, the court’s finding of
neglect is not supported by sufficient evidence establishing that her
actions placed the children in imminent risk of danger. The majority
concludes that a preponderance of the evidence in the record
establishes that the mother placed the children at risk by “attempting
to drive a motor vehicle in an intoxicated condition with the children
in the vehicle . . . [and that her state of intoxication was
established by evidence that] she exuded a strong odor of alcohol and
was acting in a belligerent and an irrational manner.” I conclude
that there is no such preponderance of the evidence in the record. As
the majority correctly acknowledges, the mother strongly disputed that
she was intoxicated. Although as noted the court’s credibility
determinations are entitled to great deference (see generally
Eschbach, 56 NY2d at 173), the determination that the mother was
intoxicated is not supported by a preponderance of the evidence in
this case. Assuming that the court properly credited the testimony of
New York State Troopers who testified that the mother exuded an odor
of alcohol, I nevertheless conclude that there was insufficient
evidence that she was intoxicated, or that her actions placed the
children in imminent risk of danger. The witnesses all testified that
she never stumbled, swayed or slurred her speech. The Troopers who
were present did not observe that the mother had glassy eyes, and
indeed one Trooper indicated that the only signs of intoxication that
he observed were that the mother smelled of alcohol and was
belligerent. She was able to answer questions and to communicate with
the Troopers. Although she was belligerent, I cannot conclude that
such belligerence was a symptom of intoxication rather than a symptom
of the mother’s mental health difficulties, the presence of which the
court had previously noted. Perhaps most importantly for the purposes
of this neglect proceeding, however, even the Troopers testified that
the children were not in the vehicle or even in the vicinity while
these events involving belligerence took place, thus establishing that
there was no imminent danger of harm to them at that time. In
addition, the first Trooper on the scene testified that the mother and
children were not present when he arrived in response to a 911 call
regarding the father, thereby establishing that the mother in fact had
removed the children from the father’s presence prior to the arrival
of the Troopers. Consequently, the court’s determination that the
mother “failed to remove the children from the environment when [the
father] displayed dramatic mood swings” is not supported by a
preponderance of the evidence.
                                 -4-                          932
                                          CAF 10-00960, CAF 10-01045

     The court’s further conclusions are completely unsupported by the
record, or do not establish neglect on the part of the mother. Prior
to finding that the mother failed to remove the children from the
environment, the court found that the mother “failed to monitor [the
father’s] medications and activities.” There is no evidence that the
mother was aware that the father had ceased taking his anti-seizure
medication, and thus the record does not support the court’s finding
with respect to the medication. In addition, the record does not
support the court’s further finding that the mother “was intoxicated
in the presence of the children and insisted on driving with the
children in the vehicle while intoxicated.” As discussed above, the
finding of intoxication is not supported by the evidence, and all the
evidence further establishes that the children were not present when
the mother indicated that she was going to drive to the hospital. To
the contrary, the evidence establishes that the children were being
cared for by a neighbor at that time. Therefore, “[t]he record
contains no affirmative proof to support a finding of neglect against
the [mother] and thus, a fortiori, such a finding is not supported by
a preponderance of the evidence” (Matter of Kenneth V. [appeal No. 2],
307 AD2d 767, 769; see Matter of Rebecca W., 122 AD2d 582).




Entered:   October 7, 2011                     Patricia L. Morgan
                                               Clerk of the Court
