                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 8, 2015                   517670
________________________________

In the Matter of CADENCE GG.,
   Alleged to be a Neglected
   Child.

ULSTER COUNTY DEPARTMENT OF
   SOCIAL SERVICES,
                    Respondent;

LINDSAY II.,
                    Appellant.
________________________________            MEMORANDUM AND ORDER

In the Matter of MARSHALL HH.,
   Alleged to be a Neglected
   Child.

ULSTER COUNTY DEPARTMENT OF
   SOCIAL SERVICES,
                    Respondent;

LINDSAY II.,
                    Appellant.
________________________________


Calendar Date:   November 18, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Egan Jr. and Clark, JJ.

                             __________


     Ted J. Stein, Woodstock, for appellant.

      Heather D. Harp, Ulster County Department of Social
Services, Kingston, for respondent.

     Amy Ingram, Kingston, attorney for the child.
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     Daniel Gartenstein, Kingston, attorney for the child.

                           __________


Lahtinen, J.P.

      Appeals from two orders of the Family Court of Ulster
County (McGinty, J.), entered August 30, 2013, which granted
petitioner's applications, in two proceedings pursuant to Family
Ct Act article 10, to adjudicate the subject children to be
neglected.

      Petitioner commenced these neglect proceedings against
respondent, the mother of Marshall HH. (born in 2007) and Cadence
GG. (born in 2010), based primarily upon the assertion that she
was intoxicated during a time that the children were entrusted to
her care. On December 25, 2012, Marshall was in respondent's
custody and Cadence had been picked up in the morning by her
father, Jesse GG. Respondent brought Marshall to a family
Christmas party, where, according to her, she consumed only one
drink of eggnog with three shots of brandy. She received a ride
back to her apartment from a family member, arriving between
7:30 p.m. and 8:00 p.m., and, while Marshall played a video game,
she laid down and quickly fell asleep. She recalled that she had
been up since 5:30 a.m., had a sore throat and was exhausted from
the day's activities.

      Shortly thereafter Jesse arrived at respondent's residence
since he mistakenly believed that he was supposed to return
Cadence by 7:30 p.m. that evening when, in fact, he was not
supposed to return the child to respondent until 7:30 a.m. the
following day. He found respondent sleeping and he had
difficulty waking her. She apparently awoke briefly and he
characterized her as appearing "a little buzzed." Nonetheless,
he departed leaving Cadence with respondent.

      A little after 8:00 p.m., Dale Reynaud, a neighbor who
lived in the same building, went to respondent's apartment for a
brief visit and found the two children awake, but respondent was
sleeping. When Reynaud could not rouse respondent by calling her
                              -3-                517670

name and shaking her, she took the two children – who often
visited her apartment and called her "Grammy Dale" – to her
apartment.

      In the meantime, Jesse had second thoughts about having
left Cadence with respondent and, fearing a confrontation with
her if he returned to get the child, he enlisted the aid of
Sergeant Kevin Richards, a member of the Ulster County Sheriff's
Department he had seen while driving. Jesse and Richards
returned to find respondent asleep and no children in the
apartment. Jesse attempted to awaken respondent and it
reportedly took several minutes to do so. According to Richards,
when respondent awoke, she did not know the whereabouts of the
children and appeared to be intoxicated. Respondent and Jesse
proceeded to engage in an argument with each other and then with
Richards, and both respondent and Jesse were eventually arrested.

      These neglect petitions ensued. Fact-finding and
dispositional hearings resulted in Family Court finding both
children neglected by respondent and they were placed with their
respective fathers. Respondent appeals.

      "[A] party seeking to establish neglect must show, by a
preponderance of the evidence, 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 or caretaker to exercise a minimum degree of care in
providing the child with proper supervision or guardianship"
(Nicholson v Scoppetta, 3 NY3d 357, 369 [2004] [internal citation
omitted]; see Matter of Alyssa OO. [Andrew PP.], 68 AD3d 1158,
1159 [2009]). "In order for danger to be imminent, it must be
near or impending, not merely possible" (Matter of Afton C.
[James C.], 17 NY3d 1, 9 [2011] [internal quotation marks and
citation omitted]), and regarding degree of care "the statutory
test is minimum degree of care – not maximum, not best, not
ideal" (id. [internal quotation marks and citation omitted]; see
Matter of Hannah U. [Dennis U.], 97 AD3d 908, 909 [2012]).

      Initially, we note that one factual determination made by
Family Court as supporting its finding of neglect was that
                              -4-                517670

respondent allegedly pressured Marshall to take a sip of her
eggnog and brandy beverage at the party. The child did not
testify, but the court found that his out-of-court statement was
sufficiently corroborated because he had made such a statement to
two different adults, although he had both denied and affirmed
the allegation to one of the adults. While the corroboration
requirement is low (see Matter of Katrina CC. [Andrew CC.], 118
AD3d 1064, 1065 [2014]), "[i]t is well settled that 'repetition
of an accusation by a child does not corroborate [that] child's
prior account'" (id. at 1066, quoting Matter of Nicole V., 71
NY2d 112, 124 [1987]). Here, the out-of-court repetition of the
statement did not provide sufficient corroboration and the
statement should not have been considered as part of the neglect
determination.

      Addressing next whether respondent was intoxicated,
conflicting proof was presented. Respondent testified that she
consumed only the one alcoholic beverage at the party and her
testimony was confirmed by other individuals who attended the
party. While Jesse's testimony was not entirely consistent, he
characterized her as "a little buzzed" and he also stated that
she looked exhausted from the day's activities. Respondent's
neighbor, Reynaud, noticed a smell of alcohol on respondent's
breath when she stopped by after the incident with Jesse and
Richards, but Reynaud did not discern any slurring of words by
respondent. Based upon the odor of alcohol on her breath and
difficulty waking up, as well as her eyes being glassy and
bloodshot, Richards opined that she was intoxicated. Richards
acknowledged, however, that respondent did not slur her speech
nor exhibit difficulty walking or standing. Although the issue
is close (cf. Matter of Damian G. [Jacquelyn M.], 88 AD3d 1268,
1271 [2011] [dissenting opn], revd 19 NY3d 841 [2012]),
nonetheless deferring to Family Court's credibility
determinations (see Matter of Thomas M. [Susan M.], 81 AD3d 1108,
1109 [2011]), there was proof of impairment sufficient to uphold
the factual determination that respondent was intoxicated.

      However, the proof presented – including the uncontradicted
testimony that respondent neither slurred her speech nor had
problems ambulating – reflect that she certainly was not highly
intoxicated (cf. Matter of Heather D., 17 AD3d 1087, 1087
                              -5-                  517670

[2005]), nor was she attempting a dangerous activity such as
driving a vehicle with a child as a passenger while intoxicated
(cf. Matter of Darcy Y. [Christopher Z.], 103 AD3d 955, 956-957
[2013]). In fact, respondent and Marshall – who was nearly six
years old – received a ride to her apartment where they safely
settled in with no reason to believe anything but a quiet evening
lay ahead. Soon Cadence – respondent's almost three-year-old
daughter – ended up in her care as a result of Jesse mistakenly
returning her 12 hours early. Nonetheless, within a very short
period of time, the children were in the care of an individual
who was a grandmother figure to them. While respondent's conduct
was far from ideal and it is possible to speculate about ways
that events could have turned out differently for the children,
nonetheless, the record fails to establish that the children were
in imminent danger, and "merely possible" danger is insufficient
to establish neglect (Nicholson v Scoppetta, 3 NY3d at 369).
There was no other proof of neglect and, under the circumstances,
this single event was inadequate to constitute neglect.

     McCarthy, Rose, Egan Jr. and Clark, JJ., concur.



      ORDERED that the orders are reversed, on the law, without
costs, and petitions dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
