IN RE: CHLOE.  P.-M. (Anonymous). (2023)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding of the Family Court, Kings County (Jacqueline B. Deane, J.), dated August 5, 2022.  The order of fact-finding, insofar as appealed from, after a fact-finding hearing, found that the mother neglected the subject child.

ORDERED that the order of fact-finding is modified, on the law, by deleting the provision thereof determining that the mother neglected the subject child by having an untreated mental illness;  as so modified, the order of fact-finding is affirmed insofar as appealed from, without costs or disbursements.

The Administration for Children's Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10, alleging, inter alia, that the mother neglected the subject child by having an untreated mental illness that placed the child at imminent risk of harm.  After a fact-finding hearing, the Family Court, among other things, in effect, conformed the pleadings to the proof, and found that ACS established by a preponderance of the evidence that the mother neglected the child by having an untreated mental illness and by knowingly permitting the child to reside in the maternal grandparents’ home, which was in an unsafe and unsanitary condition.  The mother appeals.

“ ‘To establish neglect of a child, the petitioner must demonstrate by a preponderance of the evidence, (1) that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship’ ” (Matter of Jeremiah J. [Selene A.C.], 177 A.D.3d 740, 741–742, 114 N.Y.S.3d 455, quoting Matter of Kaylarose J.H. [Rena R.D.], 160 A.D.3d 953, 955, 72 N.Y.S.3d 482;  see Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840).

Contrary to the mother's contention, the Family Court's determination that she neglected the child by knowingly permitting the child to live in the maternal grandparents’ home, which was unsafe and unsanitary, is supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][A];  1046[b][i]).  The evidence adduced at the hearing established, inter alia, that the home lacked heat, that there was no plumbing to the kitchen sink or the toilet, that several rooms had boxes and bags piled from the floor to the ceiling, evidencing hoarding, and that the broken and misaligned steps at the entrance of the home were dangerous for the child to use (see Matter of Jeremiah J. [Selene A.C.], 177 A.D.3d 740, 114 N.Y.S.3d 455;  Matter of Jessica DiB., 6 A.D.3d 533, 775 N.Y.S.2d 69).  The evidence further established that the mother knew of these conditions yet failed either to remedy the conditions or find alternative housing for the child despite an ability to do so (see generally Matter of John W., 63 A.D.2d 750, 404 N.Y.S.2d 717).  Accordingly, the court correctly determined that there was an imminent danger of impairment of the child's health as a result of the mother's conduct (see Matter of Jeremiah J. [Selene A.C.], 177 A.D.3d at 742, 114 N.Y.S.3d 455;  Matter of John H.M., 54 A.D.3d 763, 763, 864 N.Y.S.2d 89).

However, as the mother argues, ACS did not prove by a preponderance of the evidence that she neglected the child based on an untreated mental illness.  While a parent's untreated mental illness or condition that results in an imminent risk of harm to the child may support a finding of neglect (cf.  Matter of Christian G. [Alexis G.], 192 A.D.3d 1027, 144 N.Y.S.3d 447;  Matter of Catalina A. [Evelyn C.], 157 A.D.3d 667, 68 N.Y.S.3d 520), the evidence at the hearing was insufficient to establish either that the mother had an untreated mental illness or condition, or that said illness or condition placed the child at imminent risk of harm to her physical, mental, or emotional condition (see Matter of Alexis S.G. [Shanese B.], 107 A.D.3d 799, 967 N.Y.S.2d 737;  Matter of Jayvien E. [Marisol T.], 70 A.D.3d 430, 894 N.Y.S.2d 52;  Matter of Tomieke Y., 32 A.D.3d 1041, 821 N.Y.S.2d 652).  Accordingly, the Family Court should not have determined that the mother neglected the child by having an untreated mental illness.

BRATHWAITE NELSON, J.P., DOWLING, WARHIT and LOVE, JJ., concur.