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ONE OF MOTHER’S CHILDREN OPENED A LOCKED WINDOW, TOOK OUT THE SCREEN AND DROPPED HIS SIBLING TWO STORIES WHILE MOTHER WAS HOME; MOTHER COULD NOT HAVE FORESEEN THE INCIDENT; THE NEGLECT FINDING WAS REVERSED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the neglect findings. Although mother knew one of her children was sometimes aggressive, she could not have known he would open a locked window, take out the screen, and drop his sibling two stories. Apparently mother was in the bathroom with the door open when this happened. In addition, neither the children’s hygiene nor the condition of the apartment established neglect. The Fourth Department noted that, although no appeal lies from a decision, as opposed to an order, the paper here met the essential requirements of an order:

… [T]here was nothing intrinsically dangerous about leaving two of the children to eat and watch television while the mother was in the bathroom with the door open … . The record establishes that the mother knew that one of her children was sometimes aggressive towards his younger siblings, but there is no evidence in the record that she was aware that he may open a locked window, remove the screen, and drop his sibling from a height of two stories … . In making that determination, we note that the window involved in the incident was not deemed dangerous by a caseworker during a home visit less than a month before the incident.

… [P]etitioner’s evidence regarding the hygiene of the children and the condition of the apartment, which petitioner’s caseworker testified met “minimal standards,” was not sufficient to establish neglect … . Further, although a “finding of neglect may be entered where, though [being] financially able to do so or offered financial or other reasonable means to do so, a parent fails to provide the child[ren] with adequate clothing and basic medical care” … , here, “[n]o evidence was presented at the fact-finding hearing concerning the financial status of the mother” … . Matter of Silas W., 2022 NY Slip Op 04506, Fourth Dept 7-8-22

Practice Point: Mother was in the bathroom with the door open when one of her children opened a locked window, took out the screen and dropped his sibling two stories. That scenario did not support the neglect finding. Neither the children’s hygiene nor the condition of the apartment warranted a neglect finding.

 

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