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THE THIRD DEPARTMENT, REVERSING THE NEGLECT FINDINGS AGAINST MOTHER, DETERMINED THE SYSTEM FAILED MOTHER WHO WAS DEALING WITH EXTREMELY DIFFICULT CIRCUMSTANCES AND WHO WAS UNSUCCESSFULLY SEEKING HELP FROM PETITIONER FROM THE OUTSET; EVEN THE APPEALS PROCESS FAILED HER BECAUSE IT TOOK TOO LONG (THIRD DEPT). ​

The Third Department, reversing Family Court’s neglect findings, noted that mother was dealing with extremely difficult circumstances, including an abusive and violent father, and, from the outset, was desperately seeking assistance from the petitioner (the county department of social services) which was not provided. The Third Department noted that the appeal should have been brought much sooner, and the failure to do so may have resulted in the unjustified separation of mother from her children for years. In the words of the court: “it … appears that we have failed to address the pressing needs of this family, and the children, at each step:”

An adjudication of neglect based upon emotional impairment must include a determination “that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care” … .  As the oldest child’s emotional difficulties are, at least to some great extent, properly attributed to the trauma he experienced [father beating mother], rather than any failing of the mother, his condition does not support the neglect finding. Family Court further concluded that the other two children were neglected because the oldest child’s behaviors presented a risk to his siblings’ physical well-being. However, at no point did petitioner proffer evidence that either of the younger siblings had been injured by the oldest child, nor is there any evidence that such physical harm was imminent; at most, this conclusion is premised upon possible future harm, which is insufficient to support an adjudication of neglect … .

… [W]hile leaving children unattended, even for a brief period, can constitute a failure to exercise a minimum degree of parental care under certain circumstances … , it does not amount to neglect in all cases, even in certain circumstances where the unattended child is accidentally injured … . Here, considering the surrounding circumstances, we do not find that the evidence revealed such a failure. Nor will we fault the mother for her inability to control all three young children while attending to their various needs — as was the case in the incidents where the youngest child was left in a foam infant seat on a table and where the two older children ran outside of the shelter — or while taking care of necessary chores — as was the case in the incident where the youngest child fell out of a baby carriage. In our view, the mother’s conduct during these alleged incidents of neglect did not fall below a minimum degree of parental [*4]care; nor were the children physically impaired, and it was not demonstrated that any sort of impairment was imminent … . Matter of Alachi I. (Shelby J.), 2023 NY Slip Op 01822, Third Dept 4-6-23

Practice Point: Here mother was dealing with an abusive, violent father and an older child who was difficult to control. She unsuccessfully sought assistance from the social services department from the outset. The Third Department determined the neglect findings based upon the behavior of the older child were baseless and the instances where children were briefly unattended did not amount to neglect. Even the appeals process failed mother because it took years, which necessarily affected her ability to stay connected with her children.

 

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