Opinion
February 11, 1999
Appeal from the Family Court of Broome County (Ray, J.).
The record reveals that in April 1996, respondent was referred by a prenatal clinic in the City of Binghamton, Broome County, to petitioner's preventive unit in order to receive, among other things, assistance in obtaining prenatal care and parent education during her pregnancy. This referral was based upon a concern that her expected child would be at risk of being neglected due to her history of emotional problems and lack of parenting skills. On October 27, 1996, respondent gave birth to a daughter and on October 30, 1996 the child was taken into protective custody by petitioner, respondent having refused to consent to the removal. Five days later, on November 4, 1996, a neglect petition was filed.
Following a fact-finding hearing, despite petitioner's concession that it had not proven that respondent was mentally ill, Family Court determined that petitioner established by a preponderance of the evidence that the child was neglected. Following a dispositional hearing, Family Court placed the child in the custody of petitioner for a period of 12 months and, inter alia, ordered respondent to undergo alcohol and psychiatric evaluations and treatment, if recommended. Respondent appeals.
Because we find that petitioner did not prove by a preponderance of the evidence that the child is a neglected child within the meaning of Family Court Act § 1012 Fam. Ct. Act (f) (i), we reverse. The petition, in its allegations, merely sets forth in boiler-plate fashion the statutory definition of a neglected child ( see, Family Ct. Act § 1012 Fam. Ct. Act [f] [i]) with little, if any, specific information about how the child had been neglected or was "in imminent danger" of being neglected ( id.). Instead, the petition cites, in general and conclusory terms, respondent's failure to "exercise a minimum degree of care" by not providing, inter alia, food, clothing, shelter or proper guardianship; by inflicting or allowing to be inflicted harm and excessive corporal punishment; by misusing drugs and alcohol; and by other acts of similarly serious nature. The petition also alleges that respondent is not only "seriously mentally ill" and therefore unable to care for the child, but that she lacks insight into the child's needs which creates an "imminent risk" of the child becoming a neglected child.
The minimum degree of care standard establishes a "minimum baseline of proper care for children that all parents, regardless of lifestyle or social or economic position, must meet" (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct. Act § 1012 Fam. Ct. Act, at 326). Under such standard, "`parental behavior [is] evaluated objectively [according to] whether a reasonable and prudent parent would have so acted'" (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct. Act § 1012 Fam. Ct. Act, at 326, quoting Matter of Katherine C., 122 Misc.2d 276, 278). As such, a parent must exercise this minimum degree of care so as not to pose a risk of impairment to the child or place the child in imminent danger of impairment ( see, Family Ct. Act § 1012 Fam. Ct. Act [f] [i]; Matter of Travis XX., 224 A.D.2d 787, 789). In order to find neglect, petitioner must show by a preponderance of the evidence ( see, Matter of Brandon C., 237 A.D.2d 821, 822) that "[t]he child [has] been harmed or threatened with harm" ( Matter of Naticia Q., 195 A.D.2d 616, 618). In the absence of such proof, the statutory requirement of impairment or imminent danger of impairment will not be satisfied and neglect will not be established ( see, Matter of William EE., 157 A.D.2d 974, 976).
Petitioner presented four witnesses at the fact-finding hearing who testified about the events leading up to the birth and the removal of the child. Respondent's parent aide, her medical social worker and the caseworker assigned by petitioner to respondent all testified to specific incidents during respondent's pregnancy which led them to conclude that the baby would be at risk of harm when born if left in her care. In offering a basis for their conclusions, they described prenatal incidents in which respondent exhibited impatience, a low tolerance for frustration, anger and hostility; they characterized her as emotional, unstable, generally resistant and uncooperative with respect to parent education, which respondent said she did not need. Notably, her caseworker testified that, despite her perceived limitations and her resistence, respondent was attending a local alcohol abuse counseling program and made all of her prenatal doctor's appointments and that, although she had some reservations, she believed that respondent had learned enough about child care to safely parent her child. The caseworker noted that a key factor in assessing the risk to the child in this case would be the way respondent behaved with the baby in the hospital.
Also testifying in support of the petition was the Child Protective Services representative (hereinafter the CPS worker) who initiated the removal. Specifically, the CPS worker testified that three days after the child was born, she went to the hospital to make a risk assessment and investigate a report to the State hotline of suspected abuse and maltreatment because respondent was allegedly exhibiting "bizarre behavior" at the hospital. At the hospital she smelled the odor of alcohol in respondent's room and, when she questioned respondent about the odor, respondent got agitated, said it was hair spray and proceeded to angrily spray a bottle of hair spray about the room while the baby was in the room. The CPS worker, however, did not specifically detect alcohol on respondent's breath nor did she observe any signs of intoxication. Notably, respondent's parents were also in the room. The CPS worker concluded that, based upon this incident, respondent's agitated demeanor, her unspecified conversations with the nurses, her review of respondent's medical records, social services records and psychiatric records, the child was in imminent risk of harm, and she removed the child.
Critically, there is absolutely no evidence in the record as to what the hospital personnel had observed about respondent's alleged behavior or whether the reported behavior had anything to do with the manner in which respondent had treated the child. Moreover, there is nothing in the record to reveal the contents of any of the medical, psychiatric or social services records, as none of these documents were before the court; nor is there any testimony in the record as to the contents of said documents which were relied upon so heavily in making the decision to remove the child. Furthermore, the CPS worker never testified to observing respondent interacting with the child who, according to respondent, was asleep at the time of the CPS worker's brief visit.
Although petitioner attempted to establish that respondent was, as alleged, "seriously mentally ill", it conceded that it had not proven respondent to be mentally ill. Lacking that proof, petitioner relied heavily on evidence as to how respondent behaved prior to the birth of the child. Significantly, despite testimony that respondent had a violent temper and a low tolerance for frustration, no evidence was presented to show that respondent was physically violent with anyone. In addition, it was respondent's uncontroverted testimony that, upon finding out that she was pregnant, she stopped using drugs and alcohol. Although there is no evidence to the contrary, Family Court, discrediting respondent's testimony, states in its decision that "[h]er testimony that she turned her own life around in a couple of months after a few AA meetings defies common experience and logic".
It is significant and fortunate that respondent's child was born healthy with no apparent adverse effects or special needs from any drug or alcohol use, nor any other needs requiring special attention or treatment. Although respondent admitted that, while at the hospital, she expressed anger and impatience, she denied any inappropriate behavior with respect to her child and described how she offered and accepted the opportunity to feed, change and otherwise care for the child, all of which was not controverted.
"`A finding of neglect should not be made lightly, nor should it rest upon past deficiencies alone'" ( Matter of Stafanel Tyesha C., 157 A.D.2d 322, 327, appeal dismissed 76 N.Y.2d 1006, quoting Matter of Daniel C., 47 A.D.2d 160, 164 [citation omitted]; see, Matter of Milland, 146 Misc.2d 1). This is especially so where, as here, there is no evidence whatsoever in the record as to how respondent, given the opportunity, cared for her child from the time of her birth up until the removal. Moreover, a mother's prenatal conduct alone cannot be the basis of a neglect finding ( see, Matter of Milland, supra, at 6). No evidence was presented that respondent's anger ever caused her to strike her child nor is there any evidence showing that the child was harmed by her failure to fully accept parenting education. In addition, despite past history of alcohol and drug abuse, her child was born without any health problems or special needs. In sum, no evidence was presented by petitioner demonstrating that respondent's prenatal conduct presented any risk of harm to the child ( see, id., at 6).
While there were examples in the record of incidents where respondent exhibited poor parenting skills, some of which were relied upon by Family Court in its decision, the reported incidents all occurred after the petition was filed. Notably, the court on several occasions during fact finding, after objections by respondent's counsel, reminded petitioner's counsel that the focus of the proof had to be prepetition. Although petitioner's counsel, in response, reminded the court of her right to move to amend the petition to include postpetition proof, no such motion was ever made ( see, e.g., Matter of Sara X., 122 A.D.2d 795, 797, appeal dismissed 69 N.Y.2d 707), and the record does not reflect the filing of any new petitions. As such, postpetition evidence of respondent's poor parenting skills should not have been considered.
Overall, the evidence presented by petitioner at the fact-finding hearing was filled with conjecture and the allegations in the petition, were not supported by facts. Viewing the evidence in a light most favorable to petitioner, petitioner has failed to prove by a preponderance of the evidence that the child was harmed or threatened with harm. The proof fails to satisfy the statutory requirement of impairment or imminent danger of impairment of the child's physical, mental or emotional condition ( see, Matter of William EE., 157 A.D.2d 974, 976, supra).
Mikoll, J. P., Crew III, Yesawich Jr. and Carpinello, JJ., concur.
Ordered that the order is reversed, on the law, without costs, and petition dismissed.