IN RE: KENNYA S. (2011)

Supreme Court, Appellate Division, First Department, New York.

IN RE: KENNYA S., A Dependent Child Under Eighteen Years of Age, etc., Evelyn F., Respondent–Appellant, Kensader S., Respondent, Administration for Children's Services, Petitioner–Respondent.

Decided: March 22, 2011

TOM, J.P., ANDRIAS, SWEENY, MOSKOWITZ, RENWICK, JJ.

Susan Jacobs, The Center for Family Representation, New York (Daniel M. Gonen of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley of counsel), for ACS respondent. Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the child.

Order of disposition, Family Court, New York County (Susan K. Knipps, J.), entered on or about May 28, 2010, insofar as appealed from as limited by the briefs, bringing up for review a fact-finding determination that respondent mother neglected the subject child, unanimously reversed, on the law and the facts, without costs, the finding of neglect vacated, and the petition dismissed as against the mother.

The finding of neglect as against the mother was not supported by a preponderance of the evidence (see Family Court Act § 1012[f]; § 1046 [b] [i] ). The mother's false statement that she, and not the father, hit the subject child with a belt, did not, under the circumstances, establish that the mother had failed to exercise a minimum degree of care, or that the child was in imminent danger of being impaired as a result of the false statement (see Nicholson v. Scoppetta, 3 N.Y.3d 357, 368–369, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ).

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