IN RE: ZAHIR W. (Anonymous). (2019)

DECISION & ORDER

In two related proceedings pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding of the Family Court, Queens County (Joan L. Piccirillo, J.), dated February 20, 2018.  The order, after a hearing, found that the mother neglected the subject children.

ORDERED that the order is reversed, on the facts, without costs or disbursements, the petitions are denied, and the proceedings are dismissed.

Ebony W. is the mother of Zahir W. and Julius C. (hereinafter together the children).  In June 2016, the mother and her aunt agreed that the children would stay with the aunt until the end of the summer.  Before school started, the aunt agreed to keep the children for another month subject to certain conditions.  The mother did not pick up the children at the beginning of October as agreed.  On October 18, 2016, the Administration for Children's Services (hereinafter ACS) commenced these proceedings against the mother, alleging that she neglected the children by failing to provide them with proper supervision and guardianship.  Following a fact-finding hearing, the Family Court issued an order of fact-finding dated February 20, 2018, finding that the mother neglected the children.  The mother appeals from the order of fact-finding, and we reverse.

A parent neglects a child where he or she fails to “exercise a minimum degree of care ․ in providing the child with proper supervision or guardianship” that results in impairment or “imminent danger” of impairment to the child's “physical, mental or emotional condition” (Family Ct Act § 1012[f][i][B];  see Nicholson v. Scoppetta, 3 N.Y.3d 357, 369, 787 N.Y.S.2d 196, 820 N.E.2d 840;  Matter of Milagros A.W. [John R.], 128 A.D.3d 1079, 1080, 9 N.Y.S.3d 676).  Actual or imminent danger of impairment is a “prerequisite to a finding of neglect [which] ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior” (Nicholson v. Scoppetta, 3 N.Y.3d at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840;  see Matter of Milagros A.W. [John R.], 128 A.D.3d at 1080, 9 N.Y.S.3d 676;  Matter of Javan W. [Aba W.], 124 A.D.3d 1091, 1091, 2 N.Y.S.3d 654).  In order for danger to be “imminent,” it must be “near or impending, not merely possible” (Nicholson v. Scoppetta, 3 N.Y.3d at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840).

Here, the Family Court's finding of neglect is not supported by a preponderance of the evidence (see Family Ct Act § 1046[b][I];  see Matter of I.A. [Devona H.], 132 A.D.3d 757, 758, 18 N.Y.S.3d 395;  Matter of Javan W. [Aba W.], 124 A.D.3d at 1091, 2 N.Y.S.3d 654;  Matter of Joseph A. [Fausat O.], 91 A.D.3d 638, 640–641, 937 N.Y.S.2d 250).  Although the mother failed to pick up the children from the aunt in the beginning of October 2016, as agreed, there was no evidence that the children were not being well-cared for by the aunt (see Matter of Joseph A. [Fausat O.], 91 A.D.3d at 640–641, 937 N.Y.S.2d 250).  Since ACS failed to establish that the children's physical, mental, or emotional condition was impaired or was in imminent danger of becoming impaired as a result of the mother's actions, it failed to establish that the mother neglected the children (see Matter of I.A. [Devona H.], 132 A.D.3d at 758, 18 N.Y.S.3d 395;  Matter of Joseph A. [Fausat O.], 91 A.D.3d at 640–641, 937 N.Y.S.2d 250;  Matter of Justelle R. [Justino R.], 60 Misc.3d 1211[A], 2018 N.Y. Slip Op. 51074 [U], 2018 WL 3341454 [Fam. Ct., Kings County] ).

In light of our determination, we need not address the mother's remaining contention.

LEVENTHAL, J.P., BARROS, CONNOLLY and IANNACCI, JJ., concur.