| Matter of Anna F. |
| 2008 NY Slip Op 08860 [56 AD3d 1197] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Anna F. and Another, Infants. Erie CountyDepartment of Social Services, Respondent; Ira F., Appellant. |
—[*1] Joseph T. Jarzembek, Buffalo, for petitioner-respondent. David C. Schopp, Law Guardian, the Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D.Halvorsen of counsel), for Anna F. and Richard F.
Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), enteredNovember 13, 2007 in a proceeding pursuant to Family Court Act article 10. The order adjudgedthat respondent's children are neglected and placed them in the custody of petitioner.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the petition is dismissed.
Memorandum: Respondent father appeals from an order adjudicating his children to beneglected and placing them in the custody of petitioner. We agree with the father that petitionerfailed to establish by a preponderance of the evidence "that [the children's] physical, mental oremotional condition[s have] been impaired or [are] in imminent danger of becoming impaired"(Nicholson v Scoppetta, 3 NY3d357, 368 [2004]; see Family Court Act § 1012 [f] [i]), and we thereforereverse the order and dismiss the petition. Family Court found that "much of the testimony" atthe hearing was not credible, but based its finding of neglect on the admission of the father thatthere were occasions during which he either drank alcohol or used drugs while caring for thechildren, although the children were asleep at the time. While there was no evidence of repeatedmisuse of drugs or alcoholic beverages (see § 1046 [a] [iii]), the court neverthelessfound that the children were placed at risk because it was possible that they would wake up orneed to be taken to the emergency room in the middle of the night. "Imminent danger, however,must be near or impending, not merely possible" (Nicholson, 3 NY3d at 369), and therecord here fails to establish that the children's physical, mental, or emotional conditions were inimminent danger of becoming impaired (see Matter of Anastasia G., 52 AD3d 830, 832 [2008]; cf. Matter of Hailey W., 42 AD3d943, 943-944 [2007], lv denied 9 NY3d 812 [2007]). Present—Hurlbutt, J.P.,Centra, Fahey, Pine and Gorski, JJ.