| Matter of Alyssa OO. (Andrew PP.) |
| 2009 NY Slip Op 08897 [68 AD3d 1158] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Alyssa OO., a Child Alleged to be Neglected.Chenango County Department of Social Services, Respondent; Andrew PP.,Appellant. |
—[*1] Sarah C. Fitzpatrick, Chenango County Department of Social Services, Norwich, forrespondent. Christopher A. Pogson, Law Guardian, Binghamton.
Peters, J. Appeal from an order of the Supreme Court (Garry, J.), entered February 13, 2008in Chenango County, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to adjudicate Alyssa OO. a neglected child.
Respondent and Heather OO. are the parents of Alyssa OO. (born in 2002). In December2004, Alyssa began living with her maternal grandparents after the parents were evicted fromtheir apartment. The grandparents were awarded custody of Alyssa in April 2005 andrespondent's visitation was terminated in July 2005. In October 2007, petitioner commenced thisproceeding seeking an adjudication that respondent neglected Alyssa based on the followingallegations: (1) respondent engaged in verbal and physical altercations with Heather OO., someof which were in the presence of the child; (2) respondent failed to obtain counseling fordomestic violence; and (3) respondent did not adequately support the child as evidenced by hisfailure to make court-ordered child support payments. After a fact-finding hearing, SupremeCourt found Alyssa to be a neglected child. Respondent appeals.[*2]
"[A] party seeking to establish neglect must show, by apreponderance of the evidence, first, that a child's physical, mental or emotional condition hasbeen impaired or is in imminent danger of becoming impaired and second, that the actual orthreatened harm to the child is a consequence of the failure of the parent or caretaker to exercisea minimum degree of care in providing the child with proper supervision or guardianship" (Nicholson v Scoppetta, 3 NY3d357, 368 [2004] [citation omitted]; see Family Ct Act § 1012 [f] [i]; §1046 [b] [i]; Matter of Chelsea M.,61 AD3d 1030, 1031 [2009]). In other words, "petitioner must show by a preponderance ofthe credible evidence that the child has been harmed or threatened with harm. In the absence ofsuch proof, the statutory requirement of impairment or imminent danger of impairment will notbe satisfied and neglect will not be established" (Matter of Shannon ZZ., 8 AD3d 699, 700 [2004] [internalquotation marks and citations omitted]; accord Matter of Jerrica J., 2 AD3d 1161, 1162 [2003]; Matterof Jessica YY., 258 AD2d 743, 744 [1999]; see Matter of William EE., 157 AD2d974, 976 [1990]). Although we accord great deference to Supreme Court's assessment of witnesscredibility (see Matter of ShalyseWW., 63 AD3d 1193, 1196 [2009], lv denied 13 NY3d 704 [2009]; Matter of Desmond LL., 61 AD3d1309, 1309 [2009]), our review of the record reveals that petitioner has failed to meet itsburden of demonstrating neglect by a preponderance of the evidence.
First addressing respondent's failure to meet his child support obligations, the proofestablished that respondent, required to pay $50 per month in child support pursuant to a May2005 order, was in substantial arrears, having made no payments towards his support obligationsince July 2006. Additionally, the maternal grandmother testified that, while Alyssa was in hercustody, respondent provided no financial assistance to her with regard to the child's necessities.Absent from the record, however, was any evidence tending to show that Alyssa's needs werenot being met or that her welfare was impaired or in imminent danger of becoming impaired as aresult of respondent's failure to meet his child support obligations (see Family Ct Act§ 1012 [f] [i]). Proof that respondent has failed to meet his child support obligations doesnot, by itself, rise to the level of neglect.
Nor was there any evidence to support petitioner's assertion that respondent neglected Alyssaby failing to obtain counseling for domestic violence. No evidence was presented establishingthat respondent was ever required to obtain such counseling. Moreover, respondent's testimonythat he went to a counselor and discussed the domestic issues between he and Heather OO. wentunrebutted.
We further find that petitioner has failed to meet its burden of demonstrating by apreponderance of the evidence that respondent's conduct in engaging in verbal and physicalaltercations with Heather OO. impaired or posed an imminent danger of impairing Alyssa'sphysical, mental or emotional condition. While the respondent and Heather OO. agreed that theyfrequently argued with one another, and that such verbal disputes often involved screaming andhollering, with respondent ultimately leaving the home before things escalated, such proof doesnot constitute the level of conduct that has been found to serve as a basis for neglect (seeMatter of Anthony PP., 291 AD2d 687, 688 [2002]). Although there was evidence thatrespondent and Heather OO. engaged in a number of physical altercations, there was no proofthat Alyssa was present in the home during any such altercations, with the exception of anOctober 2004 incident. As to that incident, the record is devoid of proof that physical injuryresulted to any participant or that Alyssa—who was then an infant and in a cribupstairs—witnessed or was otherwise aware of the incident (see Matter of ShannonZZ., 8 AD3d at 701; Matter of Jerrica J., 2 AD3d at 1163; compare Matter of Michael WW., 20AD3d 609, 612 [2005]; Matter of Richard T., 12 AD3d [*3]986, 987-988 [2004]). While respondent's conduct wasinappropriate, since no evidence was presented concerning the mental or emotional effects thatany of the claimed conduct had on Alyssa, we are compelled to conclude that petitioner failed tosatisfy the requisite statutory standards to support a finding of neglect with respect to Alyssa (see Matter of John O., 42 AD3d687, 688-689 [2007]; Matter of Shannon ZZ., 8 AD3d at 701; Matter of AnthonyPP., 291 AD2d at 688-689; Matter of Ronnie XX., 273 AD2d 491, 494 [2000];Matter of William EE., 157 AD2d at 976).
Cardona, P.J., Lahtinen, Kane and Stein, JJ., concur. Ordered that the order is reversed, onthe law, without costs, and petition dismissed.