In a neglect proceeding, petitioner bears the burden of establishing, by a preponderance of the evidence, that the children’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and that the actual or threatened harm to the children results from the parent’s failure to exercise a minimum degree of care in providing the children with proper supervision or guardianship.

While actual injury or impairment is not necessary, the imminent threat of danger to the children must be near or impending, not merely possible. Said differently, the inquiry is focused on the existence of serious harm or potential harm to the children, not just on what might be deemed undesirable parental behavior.

Respondent testified at the fact-finding hearing that she and the children were living in a private room in a homeless shelter in Schenectady at the time of the incident. After the children had gone to sleep, respondent went into the bathroom and began drinking a bottle of brandy while talking on the phone with a family member concerning the recent death of her sister.

According to respondent, the bathroom was accessible through a small vestibule next to her private room, and she had left the door partially open so she could see the children while they slept. At some point, respondent fell asleep while seated on the toilet in the bathroom. She was later awoken by shelter staff in the early morning hours, and staff contacted an ambulance to respond.

The care report from the ambulance service indicated that the responding ambulance crew encountered the respondent in the bathroom and concluded that she was intoxicated. Accordingly, respondent was transported to Ellis Hospital in Schenectady; however, respondent refused any treatment and eventually returned to the shelter. After respondent had left in the ambulance, shelter staff contacted petitioner and spoke with a supervisor, advising her that respondent had been taken to the hospital.

The supervisor testified that she personally responded to the shelter and observed the three children in the care of shelter staff. The supervisor was then led to respondent’s private room, where she observed a bottle of brandy that had been partially consumed. The supervisor took the children into custody and was eventually contacted by respondent in the afternoon regarding their whereabouts.

The record does contain sufficient evidence establishing that respondent failed to exercise a minimum degree of care when she became intoxicated while the children were under her care and, in effect, left them unsupervised for a brief period. However, we find that petitioner failed to establish that respondent’s ill-advised conduct placed the children at risk of anything beyond, at most, possible harm.

To this point, respondent testified that her youngest children were in age-appropriate sleeping arrangements that presented no inherent danger resulting from respondent’s inebriated state. Further, although there was a period when the children were no longer supervised by respondent when she was taken to the hospital, the testimony reveals that shelter staff were watching the children until petitioner’s supervisor arrived and took custody of them, and there is no indication that they were in any danger during this period of time.

Finally, the record is devoid of any proof that the children were upset or suffered any emotional harm at any point during the incident. In this respect, the record fails to provide any indication that the children were awake during the entirety of the period that respondent was drinking alcohol and the ensuing period when respondent was asleep in the bathroom across from their private room.

Ultimately, despite the various potential witnesses petitioner could have called to shed light on the effect that respondent’s conduct had on the children or what, if anything, prompted shelter staff to enter the bathroom to wake respondent, it failed to do so, leaving the record barren as to any danger that the children may have been in or any harm they may have suffered.

Thus, while respondent’s conduct was far from ideal and it is possible to speculate about the various ways that events could have turned out differently for the children, petitioner failed to meet its burden to sufficiently put forth evidence establishing that the children were in imminent danger.

Matter of Hakeem S., – NYS3d – , 2022 WL 2346960 (3rd Dep’t.  2022)

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