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CHILD WAS ASLEEP DURING THE INCIDENT INVOLVING FATHER, NEGLECT FINDING REVERSED (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence did not support finding father had neglected the child. The child was asleep during the incident:

The Family Court’s finding that the father neglected the subject child lacks a sound and substantial basis in the record because a preponderance of the evidence does not demonstrate that the child’s physical, mental or emotional condition was impaired or in danger of becoming impaired, or that the actual or threatened harm to the child was a consequence of the father’s failure to exercise a minimal degree of care in providing her with proper supervision or guardianship during the February 14, 2016 incident …  Although the mother’s and the father’s fact-finding testimony established that the child was in the home when the incident occurred, petitioner failed to establish a prima facie case of neglect because their testimony also established that the child was sleeping in another room in the apartment and was unaware of what occurred, which testimony was supported by the testimony of the responding police officer … . Matter of K. S. (Dyllin S.), 2020 NY Slip Op 00979, First Dept 2-11-20

 

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