Opinion
534 CAF 21-00808
07-08-2022
In the MATTER OF SILAS W., Sire W., Charles W., Jr., Harmony W. and Charlys W. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. Natasha W., Respondent-Appellant.
ANDREW T. COYLE, SYRACUSE, FOR RESPONDENT-APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (ERIN WELCH FAIR OF COUNSEL), FOR PETITIONER-RESPONDENT. WALTER J. BURKARD, MANLIUS, ATTORNEY FOR THE CHILDREN.
ANDREW T. COYLE, SYRACUSE, FOR RESPONDENT-APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (ERIN WELCH FAIR OF COUNSEL), FOR PETITIONER-RESPONDENT.
WALTER J. BURKARD, MANLIUS, ATTORNEY FOR THE CHILDREN.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.
Memorandum: Petitioner commenced this proceeding pursuant to Family Court Act article 10, seeking a determination that respondent mother neglected the subject children based on the conditions of the mother's home and allegations that one of the children had fallen out of a window after the mother left the children unsupervised. The mother contends that Family Court erred in granting the petition. We agree.
As a threshold matter, petitioner contends that the appeal must be dismissed on the ground that no appeal lies from a decision. We reject that contention. The paper appealed from meets the essential requirements of an order and we therefore treat it as such (see Downstairs Cabaret, Inc. v. Wesco Ins. Co. , 187 A.D.3d 1642, 1643, 132 N.Y.S.3d 496 [4th Dept. 2020] ; Nicol v. Nicol , 179 A.D.3d 1472, 1473, 118 N.Y.S.3d 833 [4th Dept. 2020] ; see generally CPLR 2219 [a] ). We note that Family Court Act § 1112 (a) provides that an appeal from an intermediate order in a neglect proceeding "may be taken as of right" and, here, the right to appeal from the intermediate order has not terminated inasmuch as there has been no subsequent entry of an order of disposition (cf. Matter of Anthony W. [Anthony W.] , 200 A.D.3d 1596, 1596, 155 N.Y.S.3d 844 [4th Dept. 2021] ).
With respect to the merits, we agree with the mother that petitioner failed to establish that the mother neglected the children. A party seeking to establish neglect "must establish by a preponderance of the evidence, first, that [the] child[ren's] physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child[ren] is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child[ren] with proper supervision and guardianship" ( Matter of Balle S. [Tristian S.] , 194 A.D.3d 1394, 1394-1395, 147 N.Y.S.3d 292 [4th Dept. 2021], lv denied 37 N.Y.3d 904, 2021 WL 3925791 [2021] [internal quotation marks omitted]; see Family Ct Act § 1012 [f] [i] ; Nicholson v. Scoppetta , 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ). Whether "any impairment, actual or imminent, ... [is] a consequence of the parent's failure to exercise a minimum degree of parental care ... is an objective test that asks whether a reasonable and prudent parent [would] have so acted or failed to act, under the circumstances" ( Matter of Raven B. [Melissa K.N.] , 115 A.D.3d 1276, 1278, 983 N.Y.S.2d 155 [4th Dept. 2014] [internal quotation marks omitted]; see Nicholson , 3 N.Y.3d at 370, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). Although "[a]n isolated accidental injury may constitute neglect if the parent was aware of the intrinsic danger of the situation" ( Matter of James HH. , 234 A.D.2d 783, 784, 652 N.Y.S.2d 633 [3d Dept. 1996], lv denied 89 N.Y.2d 812, 657 N.Y.S.2d 405, 679 N.E.2d 644 [1997] ), here, there 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 (cf. Matter of Jarrett SS. [Jade TT.–Scott SS.] , 183 A.D.3d 1031, 1034-1035, 122 N.Y.S.3d 832 [3d Dept. 2020] ; Matter of Tylasia B. [Wayne B.] , 72 A.D.3d 1074, 1075, 901 N.Y.S.2d 84 [2d Dept. 2010], lv denied 15 N.Y.3d 713, 2010 WL 4628591 [2010] ; Matter of Victoria CC. , 256 A.D.2d 931, 933, 681 N.Y.S.2d 870 [3d Dept. 1998] ). 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 (cf. Raven B. , 115 A.D.3d at 1279, 983 N.Y.S.2d 155 ). 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.
We further conclude that petitioner'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 (see Family Ct Act § 1012 [f] [i] [A] ; cf. Raven B. , 115 A.D.3d at 1280, 983 N.Y.S.2d 155 ). 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" ( Matter of Annastasia C. [Carol C.] , 78 A.D.3d 1579, 1580-1581, 910 N.Y.S.2d 631 [4th Dept. 2010], lv denied 16 N.Y.3d 708, 2011 WL 1160539 [2011] [internal quotation marks omitted]), here, "[n]o evidence was presented at the fact-finding hearing concerning the financial status of the mother" ( id. at 1581, 910 N.Y.S.2d 631 ).