THE EVIDENCE OF ALTERCATIONS IN THE PRESENCE OF THE CHILDREN AND ALCOHOL CONSUMPTION DID NOT SUPPORT THE NEGLECT FINDINGS (THIRD DEPT).

The Third Department, reversing Family Court, determined the neglect findings were not supported by the record:

With respect to the April 2018 incident, petitioner did not sufficiently demonstrate the presence of the children during the altercation that occurred. Given that “a finding of imminent danger is contingent on the child[ren] being present,” the evidence relating to that incident was not relevant and was insufficient to support a finding of neglect … .With respect to the January 2019 incident, it is undisputed that all of the children except the oldest child were asleep during the altercation; as such, the evidence presented could not support a finding of neglect as to the younger children. As to the oldest child, it is true that “a single act of domestic violence may be sufficient to establish neglect if the child is present for such violence and is visibly upset and frightened by it” … . However, the proof at the fact-finding hearing failed in this regard because it was not established that the oldest child was visibly upset or frightened. Thus, petitioner failed to demonstrate that the oldest child was in imminent risk of emotional or physical impairment … . Moreover, the oldest child’s out-of-court statements that the father gave her two to three shots of alcohol were not corroborated by the other evidence presented by petitioner, and the mere “repetition of an accusation by a child does not corroborate that child’s prior account” … . To the contrary, even petitioner’s witnesses conceded that such a level of alcohol consumption was not supported by their observations of the oldest child’s demeanor and her .01 blood alcohol content. With respect to the allegations of alcohol abuse while caring for the children, “[t]here was insufficient evidence that [respondents] ‘misused alcoholic beverages to the extent that [they] lost self-control of [their] actions,’ or that the physical, mental, or emotional condition of the children had been impaired or was in imminent danger of becoming impaired” … . Matter of Josiah P. (Peggy P.), 2021 NY Slip Op 04936, Third Dept 9-2-21