| Matter of Casey N. |
| 2007 NY Slip Op 07847 [44 AD3d 861] |
| October 16, 2007 |
| Appellate Division, Second Department |
| In the Matter of Casey N., a Child Alleged to be Neglected. OrangeCounty Department of Social Services, Respondent; Lisa S., Appellant. (Proceeding No. 1.) Inthe Matter of Keryn D., a Child Alleged to be Neglected. Orange County Department of SocialServices, Respondent; Lisa S., Appellant. (Proceeding No. 2.) In the Matter of Tyler S., a ChildAlleged to be Neglected. Orange County Department of Social Services, Respondent; Lisa S.,Appellant. (Proceeding No. 3.) |
—[*1] David L. Darwin, County Attorney, Goshen, N.Y. (Christine Foy Stage of counsel), forrespondent. Joseph R. Faraguna, Sag Harbor, N.Y., Law Guardian.
In three related neglect proceedings pursuant to Family Court Act article 10, the motherappeals, as limited by her brief, from stated portions of an order of fact-finding and disposition ofthe Family Court, Orange County (Currier-Woods, J.), dated February 9, 2006, which, after ahearing and upon finding that she violated the terms of an adjournment in contemplation ofdismissal, inter alia, found that she neglected the subject children.
Ordered that the order of fact-finding and disposition is reversed insofar as appealed from,without costs or disbursements, and the matter is remitted to the Family Court, [*2]Orange County, for further proceedings, including a furtherfact-finding hearing and a determination on the issue of whether the instances of domesticviolence committed in the presence of the children constituted neglect.
The Orange County Department of Social Services (hereinafter DSS) initiated theseproceedings averring that the mother neglected the subject children. The mother was granted anadjournment in contemplation of dismissal (hereinafter the ACD), upon her admission that therewere "incidents of domestic violence" in her home in the presence of the children. Subsequently,DSS brought a petition to restore the matter to the calendar on the ground that the motherviolated the terms of the ACD. After a hearing, the Family Court determined that the terms of theACD were violated and, based upon the mother's prior admission, made a finding of neglect.
To sustain a finding of neglect, there must be a showing that "the children were actually orimminently harmed by reason of [the parent's] failure to exercise even minimal care in providingthem with proper oversight" (Nicholsonv Scoppetta, 3 NY3d 357, 372 [2004]). While domestic violence may be a permissiblebasis upon which to make a finding of neglect (see Matter of Deandre T., 253 AD2d 497,498 [1998]), "[n]ot every child exposed to domestic violence is at risk of impairment"(Nicholson v Scoppetta, 3 NY3d at 375).
Here, the mother's admission that there were incidents of domestic violence in the presenceof the children, did not, by itself, provide a sufficient basis for the Family Court's finding ofneglect. There was no evidence as to the nature or extent of the domestic violence, nor was thereany evidence of actual or imminent impairment to the children's emotional or mental condition(see Family Ct Act § 1012 [f] [i] [B]; Nicholson v Scoppetta, 3 NY3d at375; Matter of Todd D., 9 AD3d462, 463 [2004]; cf. Matter ofAngelique L., 42 AD3d 569 [2007]).
Accordingly, we remit the matter to the Family Court, Orange County, for furtherproceedings, including a further fact-finding hearing and a determination of whether theinstances of domestic violence committed in the presence of the children constituted neglect.Rivera, J.P., Covello, Angiolillo and Dickerson, JJ., concur.