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 11⁄2 -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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CAF 13-01836 

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