New York Supreme Court Appellate Division, First Department
April 9, 2013
IN RE ANDY Z., A CHILD UNDER EIGHTEEN YEARS OF AGE, ETC., AND HONG LAI Z., RESPONDENT-APPELLANT, COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK, PETITIONER-RESPONDENT.
Matter of Andy Z. (Hong Lai Z.)
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 9, 2013
Sweeny, J.P., Acosta, Roman, Feinman, Clark, JJ.
Order of disposition, Family Court, New York County (Clark V. Richardson, J.), entered on or about June 8, 2010, which, to the extent appealed from as limited by the briefs, brings up for review a fact-finding determination that respondent-appellant father had neglected the subject child, unanimously reversed, on the law and the facts, without costs, the finding of neglect vacated, and the petition dismissed as against the father.
The Family Court's findings of neglect against the father, based on two incidents, are not supported by a preponderance of the evidence (see Family Ct Act § 1046[b][i]). Although, as the court noted, the father had numerous opportunities to reconsider his decision to leave the child alone during one argument with the mother, it was the mother's ultimate failure to return home even after the police told her to do so, and after she knew that her husband could not do so, that caused the child, who was almost eight years old at the time, to be left alone overnight, possibly in imminent danger of becoming physically or emotionally impaired (see Family Ct Act § 1012[f][i][B]).
As the court noted, with respect to an alleged domestic violence incident between the parents, it is unclear what the child witnessed. In any event, this single incident, while unfortunate, was not, standing alone, so egregious as to support a finding of neglect (compare Matter of Eustace B. [Shondella M.], 76 AD3d 428 [1st Dept 2010], with Matter of Jeaniya W. [Jean W.], 96 AD3d 622 [1st Dept 2012]). The child's statement that he was "sad" after witnessing the incident does not establish that his mental or emotional condition was impaired or in imminent danger of being impaired as a result of the father's conduct (see Family Ct Act § 1012[f][i]; Matter of Eustace B., 76 AD3d at 429).
Lastly, any domestic violence between the parents is no longer an issue, as the mother has died (see Matter of Eustace B., 76 AD3d at 428). In addition, the child, now 12 years old, reports that he is happy living with the father, is doing well at school, and enjoys a close relationship with his father's ex-wife and her son (id.).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 9, 2013
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