In the Matter of LEAH VV. and Others, Alleged to be Neglected Children. SULLIVAN COUNTY DEPARTMENT OF FAMILY SERVICES, Appellant; THERESA WW., Respondent.
Calendar Date: November 16, 2017
Alexandra Bourne, Sullivan County Department of Family
Services, Monticello, for appellant.
Gordon, Monticello, for respondent.
Heller, Rock Hill, attorney for the children.
J. Leibowitz, Monticello, attorney for the children.
Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from an order and two amended orders of the Family Court of
Sullivan County (McGuire, J.), entered December 23, 2015,
January 12, 2016 and September 7, 2016, which dismissed
petitioner's application, in a proceeding pursuant to
Family Ct Act article 10, to adjudicate the subject children
to be neglected.
is the mother of five children, ranging in age from 16 months
to 12 years at the time of the tragic event at issue in this
neglect proceeding. On the morning of January 20, 2015,
respondent was bathing the youngest child. She left him alone
to attend to her three year old in the kitchen. When she
returned, she found the child unresponsive in the bathtub.
Paramedics arrived but were unable to resuscitate the child.
This neglect proceeding against respondent ensued after
petitioner received a hotline report by phone. After a
fact-finding hearing, Family Court determined that petitioner
failed to make out a prima facie case of neglect and
dismissed the petition. Petitioner has appealed.
reverse. As relevant here, to establish neglect, it must be
shown by a preponderance of the evidence that a child has
been harmed due to a parent's failure to exercise a
minimum degree of care in supervising the child (see
Nicholson v Scoppetta, 3 N.Y.3d 357, 368 ).
Depending on the gravity of the event, a single incident may
constitute neglect (see Matter of Cori XX. [Michael
XX.], 145 A.D.3d 1207, 1207-1208 ; Matter of
Antonio NN., 28 A.D.3d 826, 827 ). The
parent's conduct is measured under an objective standard
- "would a reasonable and prudent parent have so acted,
or failed to act, under the circumstances then and there
existing" (Matter of Nicholson v Scoppetta, 3
N.Y.3d at 370).
the testimony of a senior caseworker, a responding police
detective, a senior investigator with the State Police Family
Violence Response Team and a paramedic, as well as a
certified copy of the Catskill Regional Medical Center's
records, petitioner demonstrated that respondent was at her
vacation home with the children and her adult brother.
Respondent's husband, the children's father, was not
present. Respondent was bathing her child in about four
inches of water in the bathtub, when she left the child
unattended to get her three year old a bowl of cereal in the
kitchen, which was located approximately 55 feet away and out
of view of the bathtub. Respondent advised the detective that
she also changed the three year old's diaper. The
hospital physician's note explains that respondent stated
that she left the youngest child in the bathtub "for
some time between 1-10 minutes." The hospital record
also includes a social worker's note reporting that
respondent stated that "this is what happens when a
child is left alone." The physician further determined
that the cause of death was cardiac arrest and drowning. The
senior investigator interviewed each of the three older
children, who consistently advised that they were in bed when
this event took place.
view, this evidence was more than sufficient to establish a
prima facie case of neglect. Fundamentally, a reasonably
prudent person would not leave a 16-month-old child
unattended in a bathtub filled with four inches of water for
any appreciable amount of time (see Matter of Victoria
CC., 256 A.D.2d 931, 932-933 ). Through her own
statement, respondent estimated that she was absent for 1 to
10 minutes. Doing so was "intrinsically dangerous"
and has resulted in a heartbreaking tragedy for this family
(id. at 933). Where, as here, a prima facie case has
been established, it became respondent's obligation to
offer "a reasonable and adequate explanation for how the
child sustained the injury" (Matter of Ashlyn Q.
[Talia R.], 130 A.D.3d 1166, 1167 ). Respondent
opted not to testify and did not call any witnesses.
Consequently, we conclude on the record before us that the
petition should have been granted.
McCarthy, J.P., Devine, Mulvey and Aarons, JJ., concur.
that the appeals from the order entered December 23, 2015 and
the amended order entered January 12, ...