Opinion
No. CAF 07-02688.
November 14, 2008.
Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered November 13, 2007 in a proceeding pursuant to Family Court Act article 10. The order adjudged that respondent's children are neglected and placed them in the custody of petitioner.
ATHENA M. VINOLUS, LACKAWANNA (ANTONIO SAVAGLIO OF COUNSEL), FOR RESPONDENT-APPELLANT.
JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, LAW GUARDIAN, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR ANNA F. AND RICHARD F.
Before: Hurlbutt, J.P., Centra, Fahey, Pine and Gorski, JJ.
It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.
Memorandum: 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 NY3d 357, 368; 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 NY3d at 369), 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 AD3d 830, 832; cf. Matter of Hailey W., 42 AD3d 943, 943-944, lv denied 9 NY3d 812).