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You are here: Home1 / Evidence2 / NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE, CRITERIA EXPLAINED (FOURTH...
Evidence, Family Law

NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the neglect finding:

​

… [W]e agree with the mother that the court erred in determining that she neglected the child inasmuch as the AFC  [attorney for the child] failed to meet her burden of establishing by a preponderance of the evidence that the “child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as a consequence of the mother’s failure to exercise a minimum degree of care … . It is well established that “any impairment to the child[ ] must be clearly attributable to the unwillingness or inability of the mother to exercise a minimum degree of care toward’ [the child] . . . , rather than what may be deemed undesirable parental behavior’ ” … . “Indeed, the statutory test is minimum degree of care — not maximum, not best, not ideal” … . Here, the court concluded that, “on one hand, [the mother] may simply be a mother determined to protect her child. On the other hand, she may be a woman determined to cause emotional harm to the father of their child. In either case, the consequence of this course of action may be emotional harm to [the child]” (emphasis added). While the record establishes that the mother’s conduct has been troubling at times, “there is no indication in the record that the child was . . . impaired or in imminent danger of impairment of her physical, mental, or emotional condition as a result of any acts committed by [the mother]” … . Matter of Ellie Jo L.H., 2018 NY Slip Op 00934, Fourth Dept 2-9-18

FAMILY LAW (NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/EVIDENCE (FAMILY LAW, NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

February 9, 2018
Tags: Fourth Department
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