Matter of John O., 500969.

• Decision Date: 12 July 2007
• Docket Number: 500969.
• Parties: In the Matter of JOHN O., a Child Alleged to be Neglected. RENSSELAER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; SHARON Q., Appellant. (Proceeding No. 1.) In the Matter of SAMANTHA O., a Child Alleged to be Neglected. RENSSELAER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; SHARON Q., Appellant. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

42 A.D.3d 687

839 N.Y.S.2d 605

2007 NY Slip Op 05982

In the Matter of JOHN O., a Child Alleged to be Neglected RENSSELAER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent SHARON Q., Appellant. (Proceeding No. 1.) In the Matter of SAMANTHA O., a Child Alleged to be Neglected RENSSELAER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent SHARON Q., Appellant. (Proceeding No. 2.)

500969.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided July 12, 2007.

Appeal from an order of the Supreme Court (Stein, J.), entered June 12, 2006 in Rensselaer County, which granted petitioner's applications, in two proceedings pursuant to Family Ct Act article 10, to adjudicate respondent's children to be neglected.

PETERS, J.

Respondent is the mother of two children, Samantha (born in 1992) and John (born in 1991), who resided with her until December 2005, when a cousin was awarded temporary custody of Samantha. In February 2006, petitioner sought to adjudicate both children to be neglected. Petitioner alleged, among other things, that respondent hit Samantha on the hand with a wax candle causing bruising, called her vulgar names, went out at night, sometimes not returning home, and attempted to abandon Samantha at a local police station. After a fact-finding hearing, Supreme Court found Samantha to be neglected and John to be derivatively neglected. Supreme Court entered a one-year order of supervision upon terms agreed to by respondent. This appeal ensued.

In Nicholson v Scoppetta (3 NY3d 357 [2004]), the Court of Appeals clarified that, in seeking to establish neglect by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]), the child's physical, mental or emotional condition must be shown to have been impaired or be in imminent danger of becoming impaired (see Family Ct Act § 1012 [f] [i]). Such proffer must demonstrate "serious harm or potential harm to the child, not just ... what might be deemed undesirable parental behavior" (Nicholson v Scoppetta, supra at 369), by a "failure of his [or her] parent or other person legally responsible for his [or her] care to exercise a minimum degree of care" (Family Ct Act § 1012 [f] [i]). With the Court of Appeals emphasizing that the "statutory test is `minimum degree of care'—not maximum, not best, not ideal—and the failure must be actual, not threatened" (Nicholson v Scoppetta, supra at 370), courts are forced to evaluate parental behavior on an objective basis. Applying that standard we find that petitioner failed to demonstrate neglect by a preponderance of the evidence.

Addressing the candle incident, testimony established that respondent hit Samantha's hand with a wax candle during one of their heated exchanges. While this exchange caused a slight bruise on Samantha's thumb, it did not require any medical attention. While we decry such behavior, it did not rise to neglect (see Matter of Anthony PP., 291 AD2d 687, 688-689 [2002]; Matter of Amanda E., 279 AD2d 917, 918-919 [2001]).

We find similarly with respect to the name-calling allegation. Through the testimony of one of petitioner's supervisors who witnessed one such incident, it was established that respondent called Samantha a vulgar name during an outburst of anger after she learned that a cousin had just been awarded temporary custody of Samantha. Acknowledging that this supervisor further testified that Samantha was emotionally upset for approximately an hour thereafter, there was no viable evidence that Samantha's emotional condition was solely linked to this incident. Testimony proffered...