| Matter of Andrew S. |
| 2007 NY Slip Op 06997 [43 AD3d 1170] |
| September 25, 2007 |
| Appellate Division, Second Department |
| In the Matter of Andrew S. Suffolk County Department of SocialServices, Appellant; Alan S., Respondent. (Proceeding No. 1.) In the Matter of Julia S. SuffolkCounty Department of Social Services, Appellant; Alan S., Respondent. (Proceeding No.2.) |
—[*1] Blumberg & Bongermino, Central Islip, N.Y. (Ernest M. Bongermino of counsel), forrespondent. Robert C. Mitchell, Central Islip, N.Y. (John B. Belmonte of counsel), Law Guardian for thechildren.
In two related neglect proceedings pursuant to Family Court article 10, the petitioner appealsfrom an order of the Family Court, Suffolk County (Budd, J.), dated November 20, 2006, which,after a fact-finding hearing, dismissed the petitions.
Ordered that the order is reversed, on the law and the facts, without costs or disbursements,the petitions are reinstated, the subject children are found to be neglected by the father, and thematter is remitted to the Family Court, Suffolk County, for a dispositional hearing.
The petitioner instituted these neglect proceedings against the father pursuant to [*2]Family Court Act article 10. Following a fact-finding hearing, theFamily Court, in effect, denied the petitions and dismissed the proceedings. We reverse.
We find that the petitioner sustained its burden of proof by a preponderance of the evidencethat the subject children were neglected by the father (see Family Ct Act § 1046 [b][i]). A "neglected child" is defined as one "whose physical, mental or emotional condition hasbeen impaired or is in imminent danger of becoming impaired as a result of the failure of [the]parent . . . to exercise a minimum degree of care . . . in providing thechild with proper supervision or guardianship" (Family Ct Act § 1012 [f] [i] [B])."Significantly, actual injury or impairment is not required, and a finding of neglect may be madeprovided a preponderance of the evidence demonstrates that the child is in 'imminent danger' ofinjury or impairment" (Matter ofSalvatore C., 6 AD3d 431, 432 [2004], quoting Matter of Katie R., 251 AD2d698, 699 [1998]; see Matter of RakimW., 17 AD3d 376, 377 [2005]).
At the fact-finding hearing, the mother testified that on April 11, 2006 the children werepresent during a verbal dispute that occurred between the parents. Following that verbal dispute,the father pushed a computer out of a second floor window, causing the computer to landapproximately 12 to 15 feet away from a vehicle occupied by the mother and the children.Thereafter, on May 7, 2006 the father attempted to commit suicide by hanging himself with asheet from a second floor bannister. According to the police officer who responded to the scene,the children were present in the house during the incident and were "very upset." Thecaseworker's interview with the oldest child, Andrew, revealed that, on May 7, 2006, Andrewobserved "blood" and also observed his father being taken out in an ambulance. Under thesecircumstances, the Family Court should have concluded that the father neglected the subjectchildren. Accordingly, we remit the matter to the Family Court, Suffolk County, for adispositional hearing. Rivera, J.P., Ritter, Florio and Fisher, JJ., concur.