IN RE: REBECCA F. and others (2025)

Order of disposition, Family Court, Bronx County (E. Grace Park, J.), entered on or about April 4, 2022, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about March 14, 2022, which, after a hearing, found that respondent mother neglected the subject children, unanimously reversed, on the law and the facts, without costs, the finding of neglect vacated, the petitions dismissed, and the appeal from the dispositional portion of the order dismissed as academic.  Appeal from the reminder of the fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

The petition alleged neglect based on a single incident that occurred during the COVID–19 pandemic, when the mother, a single parent at home with three children, established a daily schedule that included an afternoon nap.  While the mother was napping, the mother's then seven-year-old daughter accidentally caused her younger brother to be burned when she was playing with a candle or stick.  The mother then called the daughter's counselor, who called the police.  Later, when the mother was outside the building with the police, she became angry and had an argument with one of the officers when she was not allowed back into the apartment briefly to retrieve certain items, including a cell phone charger.

Petitioner failed to show by a preponderance of the evidence that a minor accident involving two of the children while the mother was napping constituted neglect.  The agency's proof that the brother had a minor injury to his neck after an isolated incident did not establish that the child's mental or emotional condition was impaired or in imminent danger of being impaired as a result of the incident, or that the mother failed to exercise a minimum degree of care (see Nicholson v. Scoppetta, 3 N.Y.3d 357, 358, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004];  see also Matter of Alachi [Shelby J.], 215 A.D.3d 1014, 1015, 187 N.Y.S.3d 128 [3d Dept. 2023]).  Indeed, the brother was without any visible injury shortly after the incident.  Nor did the incident cause any impairment or imminent danger to the daughter or to the baby, who was asleep in the next room.  Although an isolated accidental injury may constitute neglect if the parent was aware of an intrinsically dangerous situation (see Matter of Silas W. [Natasha W.], 207 A.D.3d 1234, 1235, 171 N.Y.S.3d 290 [4th Dept. 2022]), there is no evidence that the mother's napping while the children were in close proximity and within earshot was intrinsically dangerous.

Similarly, Family Court's finding that the mother's interaction with the police in any respect rose to the level of neglect is not supported by a preponderance of the evidence.  A verbal argument with a police officer did not pose any serious or potentially serious harm to the infant child, who was the only child with her at that time (see Matter of Kingston T. [Diamond T.], 209 A.D.3d 743, 745, 175 N.Y.S.3d 577 [2d Dept. 2022]).  Furthermore, contrary to the court's finding, there were no exigent circumstances preventing the mother from returning to the apartment to retrieve necessary items.

In view of the foregoing, the appeal from the dispositional order has been rendered academic (see Matter of Shaun B., 55 A.D.3d 301, 302, 865 N.Y.S.2d 52 [1st Dept. 2008], lv denied 11 N.Y.3d 715, 873 N.Y.S.2d 532, 901 N.E.2d 1287 [2009]).  That portion of the appeal is also moot, as the order of disposition has expired and the children have been released to the mother (see Matter of Adam T. [Artur T.], 186 A.D.3d 1179, 1180, 131 N.Y.S.3d 15 [1st Dept. 2020]).