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

1430
CAF 13-01836
PRESENT: SCUDDER, P.J., CENTRA, CARNI, AND SCONIERS, JJ.


IN THE MATTER OF LACEY-SOPHIA T.-R.
-------------------------------------
JEFFERSON COUNTY DEPARTMENT OF SOCIAL             MEMORANDUM AND ORDER
SERVICES, PETITIONER-RESPONDENT;

ARIELA (T.)W., RESPONDENT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT-APPELLANT.

ARTHUR C. STEVER, IV, WATERTOWN, FOR PETITIONER-RESPONDENT.

JULIA R. CLEMENT, ATTORNEY FOR THE CHILD, HENDERSON HARBOR.


     Appeal from an order of the Family Court, Jefferson County
(Richard V. Hunt, J.), entered September 25, 2013 in a proceeding
pursuant to Family Court Act article 10. The order determined that
respondent had neglected her child.

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

     Memorandum: In this proceeding pursuant to Family Court Act
article 10, respondent mother contends that, following a hearing,
petitioner failed to establish by a preponderance of the evidence that
she neglected the subject child. We agree with the mother, and we
therefore reverse the order and dismiss the petition.

     Petitioner alleged that, on May 30, 2012, the 20-year-old mother
left the 1½ -year-old child in the care of the couple with whom the
mother and child lived so that the mother could take a trip to
Syracuse. Petitioner alleged that the mother did not return as
planned and was not available by telephone until June 2, 2012, when
she called the couple from the State of Virginia. Petitioner further
alleged that the mother did not make an appropriate plan to care for
the child during her absence and did not return to care for the child
until the police and petitioner intervened on June 5, 2012; that while
living with the couple, she went out “partying and drinking”; that she
called the child negative and derogatory names and was seen to have
physically handled the child roughly on at least one occasion; and
that she had possible mental health issues. In support of the
petition, a caseworker testified at the hearing that the mother left
the child with responsible people with whom she and the child lived;
that the mother admitted that she drank alcohol but denied drinking to
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the point of intoxication; that the mother admitted that she had been
in therapy but denied any mental health concerns; and that the child
was removed from the mother’s care based upon concerns regarding the
mother’s instability, possible mental health concerns that were not
treated, substance misuse, and because she had left the child with the
caregivers “with no real plan for the caregivers to have the child for
such a long time.”

     Both the man and woman with whom the mother and child had lived,
and who the parties stipulated were appropriate caregivers, testified
with respect to their relationship with the mother. Each of them
testified that they knew where the mother was when she went out; that
she stayed out all night once or twice but she never came home
intoxicated; and that the mother never struck the child, although she
was sometimes frustrated with the child. The couple assisted the
mother with child care and worked with her on how to care for the
child. The woman, a nurse, testified that, on several occasions, the
mother appeared to be overwhelmed by the child and that the mother had
stated that the couple should have custody of the child. The couple
was helping the mother to “get on her feet” and encouraged her to go
to Syracuse for an employment opportunity, knowing that she would be
gone for several days. They did not know, however, that the mother
would be leaving the state, and they were concerned that they lacked
any rights with respect to the child in case of a medical emergency.
The police were called because the mother’s grandmother appeared at
the couple’s house while the mother was away and demanded that they
give her the child, and they knew that the mother did not want her
grandmother to care for the child. The mother contacted the couple
daily by telephone while she was away. The mother conceded to the
caseworker that she should not have gone to Virginia, but noted that
she was out of state for only 24 hours. At the close of petitioner’s
case, the mother moved to dismiss the petition on the ground that
there was no evidence that the child was harmed by her actions or was
at imminent risk of harm. The Attorney for the Child joined in the
motion to dismiss the petition, and Family Court reserved decision.
The mother then testified on her own behalf. Following the hearing,
the court denied the mother’s motion to dismiss the petition and
determined that the mother neglected the child.

     “[A] party seeking to establish neglect must show, by a
preponderance of the evidence . . . , first, that [the] 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; see Family Ct Act §§ 1012 [f] [i]; 1046 [b] [i]).
“Where a motion is made by the respondent at the close of the
petitioner’s case to dismiss a neglect petition, [the court] must
determine whether the petitioner presented a prima facie case of
neglect . . . , viewing the evidence in [the] light most favorable to
the petitioner and affording it the benefit of every inference which
could be reasonably drawn from the proof presented” (Matter of
Christian Q., 32 AD3d 669, 670).
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                                                         CAF 13-01836

     We conclude that, viewing the evidence in the light most
favorable to petitioner, the evidence established that the mother left
the child with appropriate caregivers, who agreed to care for the
child for several days; however, she left the state for approximately
24 hours, and she failed to provide a medical authorization in case of
an emergency. Further, although the male caregiver was unable to
reach the mother during the confrontation with the mother’s
grandmother, petitioner’s evidence established that the mother had
borrowed a telephone and had remained in contact with the caregivers
each day that she was away. The evidence also established that the
mother was inexperienced as a parent and that the couple with whom she
lived was assisting her with parenting skills and in obtaining
appropriate housing, as well as medical and other benefits.

     We conclude that petitioner failed to establish that, as a result
of the mother’s actions, the child was in imminent danger, i.e., “near
or impending [danger], not merely possible” (Nicholson, 3 NY3d at
369). We further conclude that petitioner failed to present any
evidence connecting the mother’s alleged mental health condition to
any actual or potential harm to the child (see Matter of Joseph A.
[Fausat O.], 91 AD3d 638, 640; see also Matter of Jesus M. [Jamie M.],
118 AD3d 1436, 1437, lv denied 24 NY3d 904). We therefore conclude
that petitioner failed to establish by a preponderance of the evidence
that the child’s physical, mental or emotional condition had been
impaired or was in imminent danger of becoming impaired as a result of
the mother’s failure to exercise a minimum degree of care for the
child (see Family Ct Act § 1012 [f] [i] [A], [B]; Matter of Afton C.
[James C.], 17 NY3d 1, 8-9; cf. Matter of Elijah NN., 66 AD3d 1157,
1159, lv denied 13 NY3d 715).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
