The Third Department reversed Family Court and determined a single incident of mother’s leaving young children (9 and 3) home alone overnight was not enough to support a neglect finding. The court explained the proof requirements in some depth:
To satisfy its burden on the neglect petition, petitioner had to prove by a preponderance of the evidence that respondent’s failure “to exercise a minimum degree of care” in providing proper supervision or guardianship resulted in the children’s “physical, mental or emotional condition” being impaired or placed “in imminent danger of becoming impaired” (Family Ct Act § 1012 [f] [i]; see Family Ct Act § 1046 [b] [i]…). There are two prongs: actual or imminent danger, and failure to exercise a minimum degree of care … . The Legislature’s requirement of actual or imminent danger of impairment prevents state intrusion into private family life in the absence of “serious harm or potential harm to the child, not just . . . what might be deemed undesirable parental behavior” … . “Imminent danger, however, must be near or impending, not merely possible” … . * * *
…[T]he record does not indicate that petitioner established the first prong, that the three youngest children were in imminent danger of impairment, when respondent left them alone overnight. One police officer testified that the children were visibly upset when he first arrived at the house. That testimony is too vague to establish impairment of mental or emotional condition, and the record does not contain any expert opinion to that effect … . Even if that testimony was sufficient to show some impairment, it is unclear if the children were upset because of respondent’s actions in leaving them alone … . Leaving young children home alone overnight cannot be condoned, and such behavior satisfies the second prong of neglect in that respondent failed to exercise a minimum degree of care, did not provide proper supervision and her actions fell below what a reasonable and prudent parent would do in those circumstances. Nevertheless, one incident of this improper and irresponsible behavior does not qualify as neglect without a showing of imminent—rather than merely possible—danger of impairment to the children … . Matter of Javan W, 2015 NY Slip Op 00577, 3rd Dept 1-22-15