Victoria CC, In re

• Decision Date: 24 December 1998
• Citation: 681 N.Y.S.2d 870
• Parties: 1998 N.Y. Slip Op. 11,393 In the Matter of VICTORIA "CC", 1 Alleged to be a Neglected Child. Tompkins County Department of Social Services, Respondent; Phyllis "DD",1 Appellant. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

Page 870

681 N.Y.S.2d 870

1998 N.Y. Slip Op. 11,393

In the Matter of VICTORIA "CC", ¹ Alleged to be a Neglected Child Tompkins County Department of Social Services, Respondent Phyllis "DD",1 Appellant (And Another Related Proceeding.)

Supreme Court, Appellate Division,

Third Department.

Dec. 24, 1998.

Diane B. Withiam, Ithaca, for appellant.

John Rowley, Department of Social Services, Ithaca, for respondent.

John R. Thweatt, Law Guardian, Elmira, for Victoria "CC".

Before CARDONA, P.J., MERCURE, WHITE, SPAIN and GRAFFEO, JJ.

WHITE, J.

Appeals from two orders of the Family Court of Tompkins County (Sherman, J.), entered September 23, 1997, which granted petitioner's applications, in two proceedings pursuant to Family Court Act article 10, to adjudicate respondents' child to be neglected.

As respondent Phyllis "DD" (hereinafter the mother) was giving her nine-month-old child a bath, the telephone rang. Leaving the child in the bathtub, the mother left the bathroom to answer the phone. When she returned she found the child floating face up in the water. Fortunately, emergency medical technicians were able to revive the child, who has emerged apparently unscathed from this near drowning. Thereafter, upon its receipt of a report from the State Central Registry, petitioner established a safety plan wherein the mother was not to be left alone with the child and she was to undergo a psychological evaluation. She saw a psychologist on January 21, 1997; however, the session was terminated after an hour due to the mother's uncooperative and belligerent conduct.

This case's mosaic was completed on February 24, 1997 when the child's father, respondent Victor "CC" (hereinafter the father), consumed a quantity of beer and engaged in a loud, long running argument with the mother. During the argument, acting on their concern for the child's safety, respondents called the maternal grandparents and the grandfather came and took the child to their home. In an attempt to avoid further conflict, the father then left the marital residence and called the State Police, requesting that they take him to a motel for the night, which they did. After this incident, the mother agreed to transfer temporary custody of the child to her parents and Family Court entered an order to that effect. ² Petitioner then filed neglect petitions against the mother and the father. Following a fact-finding hearing, Family Court sustained the petitions and, on respondents' consent, entered orders of disposition placing the child in her grandparents' custody and respondents under petitioner's supervision for one year. The mother and the father appeal.

To establish neglect, petitioner must establish by a preponderance of the evidence that parental misconduct caused harm or potential harm to the child (see, Matter of Cody P., 227 A.D.2d 724, 642 N.Y.S.2d 337). Family Court found that petitioner satisfied this burden with respect to the mother as it showed that her negligent lack of supervision nearly caused the death of her child. The mother challenges Family Court's conclusion, contending that a single incident of failure to supervise does not constitute neglect. We disagree. It is well settled that a single incident may be sufficient to constitute child neglect (see, Matter of Shawn BB. [Cheryl CC.], 239 A.D.2d 678, 657 N.Y.S.2d 239; Matter of Jeffrey D. [Darrie D.], 233 A.D.2d 668, 650 N.Y.S.2d 340; Matter of Christina LL. [Steven LL.], 233 A.D.2d 705, 708, 650 N.Y.S.2d 815, lv. denied 89 N.Y.2d 812, 657 N.Y.S.2d 405, 679 N.E.2d 644) and that an isolated accidental injury may constitute neglect if the parent was aware of the intrinsic danger of the situation (see, Matter of James HH. [Larry HH.], 234 A.D.2d 783, 652 N.Y.S.2d 633, lv. denied 89 N.Y.2d 812, 657 N.Y.S.2d 405, 679 N.E.2d 644). Indisputably, leaving a nine-month-old child unattended in a bathtub is intrinsically dangerous and manifests an appalling lack of judgment that placed the child in substantial risk of harm. ...