Opinion
2018–06355 Docket No. 27462/15
03-20-2019
In the MATTER OF JORDIN B. (Anonymous). Administration for Children's Services, Appellant; v. Tiaya B. (Anonymous), et al., Respondents.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Claude S. Platton and Deborah E. Wassel of counsel), for appellant. Brooklyn Defender Services, Brooklyn, N.Y. (Jessica Marcus, Kathryn Lissy, and Lynn Vogelstein of counsel), and Davis Polk & Wardwell LLP, New York, N.Y. (Dara L. Sheinfeld and Alexa B. Lutchen of counsel), for respondent Tiaya B. (one brief filed). Kyle Sosebee, Brooklyn, NY, for respondent Cecil B. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Marcia Egger of counsel), attorney for the child.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Claude S. Platton and Deborah E. Wassel of counsel), for appellant.
Brooklyn Defender Services, Brooklyn, N.Y. (Jessica Marcus, Kathryn Lissy, and Lynn Vogelstein of counsel), and Davis Polk & Wardwell LLP, New York, N.Y. (Dara L. Sheinfeld and Alexa B. Lutchen of counsel), for respondent Tiaya B. (one brief filed).
Kyle Sosebee, Brooklyn, NY, for respondent Cecil B.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Marcia Egger of counsel), attorney for the child.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.
DECISION & ORDERORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
In 2015, the petitioner filed a neglect petition pursuant to Family Court Act article 10, alleging, inter alia, (1) as against Tiaya B., the mother, and Cecil R., a person legally responsible, that they neglected the subject child by failing to maintain adequate shelter, (2) as against Cecil R., that he neglected the child because he presented an imminent danger to her based on a prior sexual abuse finding in an unrelated Family Court proceeding as to two other children and his failure to complete a sex offender treatment program in connection with that prior finding, and (3) as against Tiaya B., that she failed to protect the child from Cecil R. Following a fact-finding hearing, the Family Court, inter alia, determined that the petitioner failed to establish a prima facie case of neglect based upon those allegations and dismissed those branches of the petition.
A neglected child is a child less than 18 years old "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 parent or [a] person legally responsible for his care to exercise a minimum degree of care" ( Family Ct Act § 1012[f][i] ), by, inter alia, "unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof" ( Family Ct Act § 1012[f][i][B] ). In order for danger to be "imminent," it must be "near or impending, not merely possible" ( Nicholson v. Scoppetta , 3 N.Y.3d 357, 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 ).
The Family Court erred in failing to give preclusive effect to the findings made in a prior 2012 Family Court order in an unrelated proceeding that Cecil R. sexually abused a child and derivatively abused another child, neither of whom is the subject of the instant proceeding, since those prior findings were binding. Nonetheless, here, the petitioner failed to establish by a preponderance of the evidence that Cecil R. posed an imminent danger to the subject child (see Matter of Afton C. [James C.] , 17 N.Y.3d 1, 926 N.Y.S.2d 365, 950 N.E.2d 101 ). Moreover, because the petitioner failed to establish by a preponderance of the evidence that Cecil R. posed an imminent danger to the child, it necessarily failed to prove that the mother neglected the child by allowing Cecil R. to live in the home (see Matter of Afton C. , 17 N.Y.3d at 11, 926 N.Y.S.2d 365, 950 N.E.2d 101 ). The petitioner additionally failed to establish by a preponderance of the evidence that Cecil R. and the mother neglected the child by failing to maintain adequate shelter (see Matter of Clydeane C. [Annetta C.] , 74 A.D.3d 486, 902 N.Y.S.2d 80 ; Matter of Iyanah D. , 65 A.D.3d 927, 885 N.Y.S.2d 79 ; Matter of Devin N. , 62 A.D.3d 631, 882 N.Y.S.2d 400 ; Matter of Allison B. , 46 A.D.3d 313, 847 N.Y.S.2d 187 ; Matter of Erik M. , 23 A.D.3d 1056, 804 N.Y.S.2d 884 ).
DILLON, J.P., LEVENTHAL, HINDS–RADIX and DUFFY, JJ., concur.