Opinion
March 11, 1994
Appeal from the Monroe County Family Court, Miller, J.
Present — Denman, P.J., Balio, Lawton, Fallon and Davis, JJ.
Order unanimously reversed on the law without costs, petition granted and matter remitted to Monroe County Family Court for further proceedings in accordance with the following Memorandum: Petitioner Monroe County Department of Social Services contends that Family Court erred in dismissing its neglect petition. We agree. At approximately 1:00 A.M. on May 22, 1992, respondent father left his two allegedly sick children, ages 16 months and 6 months, asleep and alone in a locked apartment in order to locate their mother, who had the children's Medicaid cards. When respondent located the mother at approximately 1:30 A.M., she denied having the Medicaid cards. A fight ensued and respondent repeatedly struck and kicked her. The police arrived and found respondent standing at the top of a flight of stairs with a butcher knife in his hand; the children's mother was lying unconscious at the bottom of the stairs. After being placed under arrest, respondent told the police that he had to return to his apartment because his children were alone. A police officer was sent to respondent's apartment and obtained keys to open it. From outside the apartment, the officer could hear a television blaring. Upon entering, the officer observed that the apartment was extremely hot, about 85 to 90 degrees, and smelled of grease. Clothing was strewn over the floor and beds and food, including a carton of milk and a cooked chicken, was observed on the kitchen counter along with pans and dirty dishes. The two children were sleeping on adult beds with the television blaring in front of them; they did not appear to be in bad health.
We conclude that the conduct of respondent in leaving two children alone at 1:00 A.M. in those physical surroundings placed the physical condition of the children in imminent danger of becoming impaired (see, Family Ct Act § 1012 [f] [i]; Matter of Kevin J., 162 A.D.2d 1034; Matter of Eric M., 90 A.D.2d 717; Matter of Toni "WW", 52 A.D.2d 108).
Thus, we reinstate and grant the petition, find the children to be neglected, and remit the matter to Monroe County Family Court for disposition.