Opinion
2014-02-5
In the Matter of DIANCA V. (Anonymous). Westchester County Department of Social Services, petitioner-respondent; Jady P. (Anonymous), respondent-appellant, et al., respondent. (Proceeding No. 1) In the Matter of Gilbert C. (Anonymous), Jr. Westchester County Department of Social Services, petitioner-respondent; Jady P. (Anonymous), respondent-appellant, et al., respondent. (Proceeding No. 2).
Daniel L. Pagano, Yorktown Heights, N.Y., for respondent-appellant. Robert F. Meehan, County Attorney, White Plains, N.Y. (Adam Rodriguez of counsel), for petitioner-respondent.
Daniel L. Pagano, Yorktown Heights, N.Y., for respondent-appellant. Robert F. Meehan, County Attorney, White Plains, N.Y. (Adam Rodriguez of counsel), for petitioner-respondent.
Paul H. Kean, Elmsford, N.Y., attorney for the children.
In two related child protective proceedings pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding and disposition of the Family Court, Westchester County (Schauer, J.), entered June 29, 2012, which, after fact-finding and dispositional hearings, inter alia, found that she neglected the subject children.
ORDERED that the order of fact-finding and disposition is reversed, on the facts, without costs or disbursements, and the petitions insofar as asserted against the mother are denied.
To establish neglect pursuant to section 1012(f)(i)(B) of the Family Court Act, the petitioner must prove, by a preponderance of the evidence, (1) that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship ( see Matter of Afton C. [ James C.], 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101; Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840; Matter of Kiara C. [David C.], 85 A.D.3d 1025, 1025–1026, 926 N.Y.S.2d 566).
Here, the petitioner failed to establish by a preponderance of the evidence that the mother neglected her children ( see Matter of Dallas C. [ Dusty M.C.–Richard C.], 103 A.D.3d 631, 631, 959 N.Y.S.2d 445; Matter of Anissa A.P. [ Gasmelba B.], 96 A.D.3d 853, 853, 947 N.Y.S.2d 882). Accordingly, the petitions insofar as asserted against the mother should have been denied.
As a result of our determination, the mother's remaining contentions have been rendered academic. SKELOS, J.P., DICKERSON, CHAMBERS and MILLER, JJ., concur.