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

77
CAF 13-00371
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF RAVEN B.
--------------------------------------------
OSWEGO COUNTY DEPARTMENT OF SOCIAL SERVICES,      MEMORANDUM AND ORDER
PETITIONER-APPELLANT;

MELISSA K.N., RESPONDENT-RESPONDENT.


NELSON LAW FIRM, MEXICO (ANNALISE DYKAS OF COUNSEL), FOR
PETITIONER-APPELLANT.

LINDA M. CAMPBELL, SYRACUSE, FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Family Court, Oswego County (Kimberly
M. Seager, J.), entered February 11, 2013 in a proceeding pursuant to
Family Court Act article 10. The order dismissed the petition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the petition is
granted, respondent is adjudicated to have neglected the subject child
and the matter is remitted to Family Court, Oswego County, for a
dispositional hearing.

     Memorandum: Since December 2010, petitioner, Oswego County
Department of Social Services (DSS), had been visiting the apartment
in which respondent mother had been living, and had been providing the
mother with various services, including substance abuse treatment,
parenting and preventative services, food vouchers, and housing
support. At the time of the incident precipitating the instant
neglect petition, i.e., May 28, 2012, the mother had been responsible
for the care of the child for only a short time inasmuch as the child
had been discharged from foster care on a trial basis in December 2011
and fully discharged on March 29, 2012. On the morning of the
incident, while the mother was taking a nap, the child—then 3½ years
old—left the apartment on her own, wandered approximately 1½ blocks
away, and was eventually found by a neighbor, who took the child into
her home and then assisted the police in attempting to locate the
child’s caretaker. After an unsuccessful search for the child’s home,
the responding police officer received the mother’s address from his
supervisor. Upon arriving at that address, he proceeded through an
open door at the back of the residence onto a porch, loudly announced
the presence of the police several times, went through a second open
door leading to a stairway, again announced his presence, and then
entered a third open door at the top of the stairs leading into the
mother’s apartment. After the police officer again announced his
                                 -2-                            77
                                                         CAF 13-00371

presence, the mother awoke and exited her bedroom, at which point the
officer informed her that her child had been located down the street.

     On May 29, 2012, the child was temporarily removed from the
mother’s care with the mother’s consent pursuant to Family Court Act §
1021 and, following a hearing pursuant to section 1027, Family Court
ordered that the child be released to the mother’s custody. On June
1, 2012, DSS filed the instant petition alleging that the child was
neglected because she was placed at imminent risk of physical,
emotional or mental harm by the mother’s failure to exercise a minimum
degree of care in providing the child with proper supervision, and the
mother’s failure to maintain a safe and sanitary residence. Following
a fact-finding hearing, the court held that DSS had failed to prove by
a preponderance of the evidence that the child was neglected, and DSS
appeals from the order dismissing the petition. Inasmuch as we
conclude that the court’s determination lacks a sound and substantial
basis in the record, we reverse the order, grant the petition, and
remit the matter to Family Court for a dispositional hearing (see
generally Matter of Gada B. [Vianez V.], 112 AD3d 1368, 1369).

     As an initial matter, we note that the mother was present at the
fact-finding hearing, but failed to testify or present any proof. We
“thus . . . draw the ‘strongest inference [against her] that the
opposing evidence permits’ ” (Matter of Jayden B. [Erica R.], 91 AD3d
1344, 1345, quoting Matter of Nassau County Dept. of Social Servs. v
Denise J., 87 NY2d 73, 79).

     As relevant to the first basis for neglect alleged in the
petition, a neglected child is defined as a child less than 18 years
of age “whose physical, mental or emotional condition has been
impaired or is in imminent danger of becoming impaired as a result of
the failure of his [or her] parent . . . to exercise a minimum degree
of care . . . in providing the child with proper supervision or
guardianship, by unreasonably inflicting or allowing to be inflicted
harm, or a substantial risk thereof” (Family Ct Act § 1012 [f] [i]
[B]). As the Court of Appeals has explained, “[t]he statute . . .
imposes two requirements for a finding of neglect, which must be
established by a preponderance of the evidence . . . First, there must
be proof of actual (or imminent danger of) physical, emotional or
mental impairment to the child . . . Second, any impairment, actual or
imminent, must be a consequence of the parent’s failure to exercise a
minimum degree of parental care . . . This is an objective test that
asks whether a reasonable and prudent parent [would] have so acted, or
failed to act, under the circumstances” (Matter of Afton C. [James
C.], 17 NY3d 1, 9 [internal quotation marks omitted]). Moreover, it
is well established that “the statutory requirement of imminent danger
. . . does not require proof of actual injury” (Matter of Ruthanne F.,
265 AD2d 829, 830), and that “[a] single incident where the parent’s
judgment was strongly impaired and the child exposed to a risk of
substantial harm can sustain a finding of neglect” (Matter of Serenity
P. [Shameka P.], 74 AD3d 1855, 1856 [internal quotation marks
omitted]; see Matter of Antonio NN., 28 AD3d 826, 827).

     With regard to the first requirement for a finding of neglect
                                 -3-                            77
                                                         CAF 13-00371

based on lack of proper supervision, there is no dispute that the 3½-
year-old child was in imminent danger of physical, emotional, or
mental impairment when she left the apartment and wandered the streets
unsupervised until she was discovered by a neighbor (see Antonio NN.,
28 AD3d at 826-828; Matter of Jonathan B., 270 AD2d 42, 42, lv denied
95 NY2d 765, rearg denied 96 NY2d 755; see also Serenity P., 74 AD3d
at 1855-1856), and that there was a “causal connection between the
basis for the neglect petition and the circumstances that allegedly
produce[d] the . . . imminent danger of impairment” (Nicholson v
Scoppetta, 3 NY3d 357, 369).

     With regard to the second requirement for a finding of neglect
based on lack of proper supervision, we conclude that DSS established
by a preponderance of the evidence that the imminent danger of
impairment was the consequence of the mother’s failure to exercise a
minimum degree of parental care. “A child may be found to be
neglected when the parent knew or should have known of circumstances
requiring action to avoid harm or the risk of harm to the child and
failed to act accordingly” (Matter of Brian P. [April C.], 89 AD3d
1530, 1530; see Antonio NN., 28 AD3d at 827). Here, the evidence was
sufficient to meet that standard (see Antonio NN., 28 AD3d at 826-
828). Specifically, the evidence established that the outer door
leading onto the porch was generally not locked, that the second door
leading to the stairway was not always locked or that the lock was
broken, and that the door leading into the apartment at the top of the
stairs was never locked or that the lock was broken. The evidence
also established that the mother was aware that the child was able to
traverse the stairway and access the porch; thus, the mother knew, or
should have known, that the child was able to open and go through
unlocked doors. Following a visit from a DSS caseworker who observed
the child going through the doors and traversing the stairs multiple
times unsupervised and without the mother noticing, the mother was
warned by the caseworker that it would be inappropriate and unsafe to
allow the child to continue to do so. That knowledge, coupled with
the evidence that the outer door was often unlocked or that the lock
was broken, would lead a reasonably prudent parent to lock the door or
otherwise act to ensure that his or her child could not get outside
unsupervised before the parent fell asleep (see Afton C., 17 NY3d at
9). The mother’s contention that there was no evidence that the child
had a propensity to go through the outer door and leave the building
entirely is therefore of little consequence. Drawing the strongest
inference against the mother that the opposing evidence permits (see
Jayden B., 91 AD3d at 1345), the mother should have known, at least,
that the child had the ability to open an unlocked door, which could
afford her the means of exiting the apartment on her own if left
unsupervised.

     Thus, although the hearing court’s determinations are entitled to
great deference (see generally id.), we conclude that the court erred
in holding that DSS failed to establish, by a preponderance of the
evidence, that the single incident at issue was sufficient to
constitute neglect. To the contrary, we conclude that the mother was
aware, or should have been aware, of the intrinsic danger of going to
sleep without ensuring that the child would remain securely in the
                                 -4-                            77
                                                         CAF 13-00371

apartment (see Antonio NN., 28 AD3d at 827-828). There is no evidence
that the mother suffered from any physical ailment that prevented her
from properly supervising the child, nor is there any evidence that
the mother took proactive steps, such as locking the door, using a
child lock, or obtaining a caregiver, to prevent the child from
leaving the apartment while the mother slept during the day (cf.
Matter of Janique Y., 256 AD2d 1053, 1054). We therefore conclude
that petitioner met its burden of establishing that the imminent
impairment of the child’s physical, emotional, or mental condition was
a consequence of the mother’s failure to exercise a minimum degree of
parental care (see generally Family Ct Act § 1012 [f] [i]; Nicholson,
3 NY3d at 368).

     As relevant to the second basis for neglect alleged in the
petition, a neglected child is defined as a child less than 18 years
of age “whose physical, mental or emotional condition has been
impaired or is in imminent danger of becoming impaired as a result of
the failure of his [or her] parent . . . to exercise a minimum degree
of care . . . in supplying the child with adequate food, clothing,
[or] shelter . . . though financially able to do so or offered
financial or other reasonable means to do so” (Family Ct Act § 1012
[f] [i] [A]). We conclude that the court’s determination that the
child was not neglected based on the condition of the mother’s
apartment lacks a sound and substantial basis in the record.

      The evidence at the fact-finding hearing established that, in
March 2012, there were several garbage bags on the porch, and in the
kitchen and living room; there was a mound of toys covering the living
room floor; and there were dirty dishes both overflowing the kitchen
sink and stacked next to the toilet in the bathroom. In addition, the
freezer was full of ice; the bottom drawer of the refrigerator
contained moldy fruit floating in several inches of dirty water; and
the bathroom sink was filled with a grayish-brown substance which
appeared moldy and gel-like. Moreover, the evidence established that
in the living room, where the child slept, cat litter and feces were
in and around a large trash can lid, which was accessible to the child
because the child gate in front of it was not properly secured. There
was also a litter box containing cat feces in the living room, and the
only barrier preventing the child’s access thereto was a lawn chair.
Importantly, there was evidence that the mother had previously
admitted that the child had been exposed to cat feces in the past and
that the mother had been warned about the safety hazards of failing to
prevent the child’s access to the litter and feces. There was also
evidence that the child had access to the large quantities of garbage
within the apartment and, during one visit by a DSS caseworker, the
child was observed wearing no pants or underwear, with a disposable
razor cover stuck between her buttocks. Under the above
circumstances, we conclude that the unsanitary and unsafe condition of
the mother’s apartment posed an imminent danger of impairment to the
child’s physical, mental, or emotional condition (see Matter of Sean
K., 50 AD3d 1220, 1221; Matter of Aiden L., 47 AD3d 1089, 1090; Matter
of Brian TT., 29 AD3d 1228, 1229; Matter of Mary S., 279 AD2d 896,
898).
                                 -5-                           77
                                                        CAF 13-00371

     The court’s conclusion that “the conditions in [the mother’s]
apartment lasted no longer than March 19th through March 26th” is
unsupported by the evidence. Indeed, the evidence established that
the apartment had been in deplorable condition on more than one
occasion in May 2012 (cf. Matter of Iyanah D., 65 AD3d 927, 927-928),
including when a DSS caseworker conducted a visit and noted that the
foul odor of the apartment nauseated her, and when the police officer
entered the apartment on May 28, 2012 and observed garbage and clothes
scattered throughout the apartment, as well as flies in the kitchen,
and smelled a strong, foul odor (see Sean K., 50 AD3d at 1221; Aiden
L., 47 AD3d at 1090; Mary S., 279 AD2d at 898). The court’s
conclusion that the child had not been exposed to those conditions is
unsupported by the evidence, and the mother’s further contention that
the unsafe and unsanitary condition of the apartment was transient “is
not only at odds with the state of the apartment as described by
[DSS’s] caseworker, but also strongly suggests that she [did] not
appreciate or recognize the imminent threat the[ ] conditions posed to
her [3½-year-old daughter]” (Aiden L., 47 AD3d at 1090). We therefore
conclude that the court’s determination—that the unsafe and unsanitary
condition of the mother’s apartment, on numerous occasions, did not
place the child’s physical, mental, or emotional state in imminent
danger of impairment—is not supported by a sound and substantial basis
in the record (see generally Gada B., 112 AD3d at 1369).




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
