NEGLECT FINDING REVERSED, CRITERIA EXPLAINED.
The Second Department, reversing Family Court, determined the neglect finding was not supported by the evidence. The child was removed from the hospital shortly after mother gave birth:
The Administration for Children’s Services (hereinafter ACS) filed a child neglect petition four days after the mother gave birth to the subject child in a Brooklyn hospital. During the initial days in the hospital, the child was placed in the room with the mother, where she took appropriate care of him. However, when the hospital personnel discovered that the mother only had income from public assistance and that she and the baby would not be accepted back into the home where the maternal grandmother was staying, they called ACS, which undertook an emergency removal of the child. It is undisputed that no ACS worker provided the mother with housing information, including emergency housing information, or provided any supplies for the child. After a fact-finding hearing, the Family Court found that the mother neglected the child. * * *
“At a fact-finding hearing in a neglect proceeding pursuant to Family Court Act article 10, a petitioner has the burden of proving by a preponderance of the evidence that the subject child was neglected”… . A neglected child is one “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 . . . to exercise a minimum degree of care . . . in supplying the child with adequate food, clothing, shelter or education . . . though financially able to do so or offered financial or other reasonable means to do so”… . Actual or imminent danger of impairment is a “prerequisite to a finding of neglect [which] ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior”… . “Imminent danger . . . must be near or impending, not merely possible”… . Here, ACS failed to demonstrate, by a preponderance of the evidence, that the mother did not supply the child with adequate food, clothing, and shelter although financially able to do so or offered financial or other reasonable means to do so … . Matter of Zachariah W. v Dominique W., 2017 NY Slip Op 02801, 2nd Dept 4-12-17
FAMILY LAW (NEGLECT FINDING REVERSED, CRITERIA EXPLAINED)/NEGLECT (FAMILY LAW, NEGLECT FINDING REVERSED, CRITERIA EXPLAINED)