In the Matter of CAMERON O. and Others, Alleged to be Neglected Children. OTSEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; SCOTT O., Appellant. (And Another Related Proceeding.)
Calendar Date: January 18, 2017
Patnode, Rural Law Center of New York, Castleton (Cynthia
Feathers of counsel), for appellant.
M. Lettis, Otsego County Department of Social Services,
Cooperstown, for respondent.
William Koslosky, Utica, attorney for the child.
B. Laughlin, Cherry Valley, attorney for the children.
Before: McCarthy, J.P., Lynch, Devine and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Otsego County (Lambert,
J.), entered September 18, 2015, which, among other things,
granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 10, to adjudicate
respondent's children to be neglected.
is the father of four sons (born in 2005, 2012, 2013 and
2014). In November 2014, respondent was at home with his
children. While two children were upstairs in bed and the
other two were in the living room, a canister of butane
exploded in the kitchen causing severe burns to respondent
and significant damage to the home. None of the children were
injured. Following an investigation, petitioner commenced
this neglect proceeding against respondent. After a
fact-finding hearing, Family Court found that
respondent's use of butane, in close proximity to a high
heat source, created a dangerous circumstance and that the
children's physical, mental or emotional condition was
impaired, or in imminent danger of being impaired, by
respondent's failure to provide proper supervision or
guardianship; it therefore adjudicated the children to be
neglected. This appeal by respondent ensued.
affirm. "A finding of neglect will be sustained if
petitioner demonstrated, by a preponderance of evidence, that
the child[ren]'s physical, mental or emotional condition
was harmed or is in imminent danger of such harm as a result
of the parent's failure to exercise a minimum degree of
care that a reasonably prudent person would have used under
the circumstances" (Matter of Marcus JJ. [Robin
JJ.], 135 A.D.3d 1002, 1004  [citations omitted];
see Family Ct Act §§ 1012 [f] [i] [B];
1046 [b]; Matter of Javan W. [Aba W.], 124 A.D.3d
1091, 1091 , lv denied 26 N.Y.3d 905');">26 N.Y.3d 905 ;
Matter of Daniel X. [Monica X.], 114 A.D.3d 1059,
1060 ). "There are two prongs: actual or imminent
danger, and failure to exercise a minimum degree of
care" (Matter of Javan W. [Aba W.], 124 A.D.3d
at 1091 [citation omitted]). "A finding of neglect does
not require actual injury or impairment, but only an imminent
threat that such injury or impairment may result, which can
be established through a single incident or
circumstance" (Matter of Heaven H. [Linda H.],
121 A.D.3d 1199, 1199  [internal quotation marks,
brackets and citations omitted]; see Matter of Daniel X.
[Monica X.], 114 A.D.3d at 1060; Matter of Lamarcus
E. [Jonathan E.], 94 A.D.3d 1255, 1256 ).
testified that he was cooking dinner for his wife, who had
yet to return home from work. There were several canisters of
butane in the kitchen because he had been refilling a
cigarette lighter. Petitioner sought to establish that
respondent was in the process of refining marihuana into
"butane honey oil" in light of the oldest
child's report that just prior to the explosion,
respondent and another man were stirring a green substance in
a pot. However, Family Court found that prospect
inconsequential to a finding of neglect. Family Court noted
that respondent offered no comprehensible explanation for
placing an apparently leaking butane canister two feet from
the stove and several other butane canisters nearby. The
proof presented regarding the extent of damage to the home
supports the court's description of the incident as a
major explosion. These circumstances, as confirmed through
respondent's admissions, demonstrate both his failure to
exercise a minimum degree of care for his children, as well
as their exposure to imminent danger. Consequently, there was
ample basis to conclude that "a reasonable and prudent
parent" would not have engaged in such activity
(Nicholson v Scoppetta, 3 N.Y.3d 357, 370 ;
see Matter of Emmett RR. [Scott RR.], 134 A.D.3d
1189, 1191 ; Matter of Daniel X. [Monica X.],
114 A.D.3d at 1060). "[G]iving due deference to Family
Court's... determinations of the witnesses'
credibility" (Matter of Marcus JJ. [Robin JJ.],
135 A.D.3d at 1005; see Matter of Emmett RR. [Scott
RR.], 134 A.D.3d at 1191), we find adequate support in
the record for Family Court's finding of neglect.
McCarthy, J.P., Lynch and ...