Opinion
2013-04-11
In re ANDY Z., A Child Under Eighteen Years of Age, etc., Hong Lai Z., Respondent–Appellant, Commissioner of Social Services of the City of New York, Petitioner–Respondent.
Steven N. Feinman, White Plains, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondent.
Steven N. Feinman, White Plains, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Elana E. Roffman of counsel), attorney for the child.
SWEENY, J.P., ACOSTA, ROMÁN, FEINMAN, CLARK, JJ.
Order of disposition, Family Court, New York County (Clark V. Richardson, J.), entered on or about June 8, 2010, which, to the extent appealed from as limited by the briefs, brings up for review a fact-finding determination that respondent father had neglected the subject child, unanimously reversed, on the law and the facts, without costs, the finding of neglect vacated, and the petition dismissed as against the father.
The Family Court's findings of neglect against the father, based on two incidents, are not supported by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i] ). The statutory test for neglect is “ ‘minimum degree of care’—not maximum, not best, not ideal—and the failure [to exercise that degree of care] must be actual, not threatened” ( Nicholson v. Scoppetta, 3 N.Y.3d 357, 370, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ). Here, the father's conduct during a sequence of events that resulted in the child being left home alone overnight, while not ideal, did not fall below the statutory minimum degree of care.
Regarding the second incident, an alleged domestic violence dispute between the parents, as the court noted, it is unclear what the child witnessed. In any event, this single incident, while unfortunate, was not, standing alone, so egregious as to support a finding of neglect ( compare Matter of Eustace B. [Shondella M.], 76 A.D.3d 428, 906 N.Y.S.2d 229 [1st Dept. 2010], with Matter of Jeaniya W. [Jean W.], 96 A.D.3d 622, 946 N.Y.S.2d 476 [1st Dept. 2012] ).
The Decision and Order of this Court entered herein on April 9, 2013 is hereby recalled and vacated.