In re Cadence GG.

• Decision Date: 08 January 2015
• Parties: In the Matter of CADENCE GG., Alleged to be a Neglected Child. Ulster County Department of Social Services, Respondent; Lindsay II., Appellant. In the Matter of Marshall HH., Alleged to be a Neglected Child. Ulster County Department of Social Services, Respondent; Lindsay II., Appellant.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 952

1 N.Y.S.3d 450

In the Matter of CADENCE GG., Alleged to be a Neglected Child.

Ulster County Department of Social Services, Respondent;

Lindsay II., Appellant.

In the Matter of Marshall HH., Alleged to be a Neglected Child.

Ulster County Department of Social Services, Respondent;

Lindsay II., Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 8, 2015.

Ted J. Stein, Woodstock, for appellant.

Heather D. Harp, Ulster County Department of Social Services, Kingston, for respondent.

Amy Ingram, Kingston, attorney for the child.

Daniel Gartenstein, Kingston, attorney for the child.

Before: LAHTINEN, J.P., McCARTHY, ROSE, EGAN JR. and CLARK, JJ.

LAHTINEN, J.P.

Appeals from two orders of the Family Court of Ulster County (McGinty, J.), entered August 30, 2013, which granted petitioner's applications, in two proceedings pursuant to Family Ct. Act article 10, to adjudicate the subject children to be neglected.

Petitioner commenced these neglect proceedings against respondent, the mother of Marshall HH. (born in 2007) and Cadence GG. (born in 2010), based primarily upon the assertion that she was intoxicated during a time that the children were entrusted to her care. On December 25, 2012, Marshall was in respondent's custody and Cadence had been picked up in the morning by her father, Jesse GG. Respondent brought Marshall to a family Christmas party, where, according to her, she consumed only one drink of eggnog with three shots of brandy. She received a ride back to her apartment from a family member, arriving between 7:30 p.m. and 8:00 p.m., and, while Marshall played a video game, she laid down and quickly fell asleep. She recalled that she had been up since 5:30 a.m., had a sore throat and was exhausted from the day's activities.

Shortly thereafter Jesse arrived at respondent's residence since he mistakenly believed that he was supposed to return Cadence by 7:30 p.m. that evening when, in fact, he was not supposed to return the child to respondent until 7:30 a.m. the following day. He found respondent sleeping and he had difficulty waking her. She apparently awoke briefly and he characterized her as appearing "a little buzzed." Nonetheless, he departed leaving Cadence with respondent.

A little after 8:00 p.m., Dale Reynaud, a neighbor who lived in the same building, went to respondent's apartment for a brief visit and found the two children awake, but respondent was sleeping. When Reynaud could not rouse respondent by calling her name and shaking her, she took the two children—who often visited her apartment and called her "Grammy Dale"—to her apartment.

In the meantime, Jesse had second thoughts about having left Cadence with respondent and, fearing a confrontation with her if he returned to get the child, he enlisted the aid of Sergeant Kevin Richards, a member of the Ulster County Sheriff's Department he had seen while driving. Jesse and Richards returned to find respondent asleep and no children in the apartment. Jesse attempted to awaken respondent and it reportedly took several minutes to do so. According to Richards, when respondent awoke, she did not know the whereabouts of the children and appeared to be intoxicated. Respondent and Jesse proceeded to engage in an argument with each other and then with Richards, and both respondent and Jesse were eventually arrested.

These neglect petitions ensued. Fact-finding and dispositional hearings resulted in Family Court finding both children neglected by respondent and they were placed with their respective fathers. Respondent appeals.

"[A] party seeking to establish neglect must show, by a preponderance of the evidence, first, that a child'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 is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship" ( Nicholson v. Scoppetta, 3 N.Y.3d 357, 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] [internal citation omitted]; see Matter of Alyssa OO. [Andrew PP.], 68 A.D.3d 1158, 1159, 889 N.Y.S.2d 752 [2009] ). "In order for danger to be imminent, it must be near or impending, not merely possible" ( Matter of Afton C. [James C.], 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 [2011] [internal quotation marks and citation omitted] ), and regarding degree of care "the statutory test is minimum degree of care—not maximum, not best, not ideal" (id. [internal quotation marks and citation omitted]; see Matter of Hannah U. [Dennis

U.],

97 A.D.3d 908, 909, 948 N.Y.S.2d 704 [2012] ).

Initially, we note that one factual determination made by Family Court as supporting its finding of neglect was that respondent allegedly pressured Marshall to take a sip of her eggnog and brandy beverage at the party. The child did not testify, but the court found that his out-of-court statement was sufficiently corroborated because he had made such a statement to two different adults, although he had both denied and affirmed the allegation to one of the adults. While the corroboration requirement is low (see Matter of Katrina CC. [Andrew CC.], 118 A.D.3d 1064, 1065, 986 N.Y.S.2d 366 [2014] ), "[i]t is well settled that ‘repetition of an accusation by a child does not corroborate [that] child's prior account’ " ( id. at 1066, 986 N.Y.S.2d 366, quoting Matter of Nicole V., 71 N.Y.2d 112, 124, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ). Here, the out-of-court repetition of the statement did not...