IN RE: ANNA F. and Richard F. (2008)

Respondent father appeals from an order adjudicating his children to be neglected and placing them in the custody of petitioner.   We agree with the father that petitioner failed to establish by a preponderance of the evidence “that [the children's] physical, mental or emotional condition[s have] been impaired or [are] in imminent danger of becoming impaired” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840;  see Family Court Act § 1012[f][i] ), and we therefore reverse the order and dismiss the petition.   Family Court found that “much of the testimony” at the hearing was not credible, but based its finding of neglect on the admission of the father that there were occasions during which he either drank alcohol or used drugs while caring for the children, although the children were asleep at the time.   While there was no evidence of repeated misuse of drugs or alcoholic beverages (see § 1046[a][iii] ), the court nevertheless found that the children were placed at risk because it was possible that they would wake up or need 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 N.Y.3d at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840), and the record here fails to establish that the children's physical, mental, or emotional conditions were in imminent danger of becoming impaired (see Matter of Anastasia G., 52 A.D.3d 830, 832, 861 N.Y.S.2d 126;  cf. Matter of Hailey W., 42 A.D.3d 943, 943-944, 839 N.Y.S.2d 644, lv. denied 9 N.Y.3d 812, 846 N.Y.S.2d 602, 877 N.E.2d 652).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

MEMORANDUM: