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Thursday, December 10, 2009

NY state court rules that dad did not neglect child by failing to pay support & by fighting with mom

Yesterday, the New York State Appellate Division, Third Department, ruled against Chenango County Department of Social Services and reversed a Supreme Court judge's ruling that Andrew PP neglected his daughter by having verbal and physical altercations with her mother while she was present, by failing to go for domestic violence counseling, and by failing to pay child support.

In its ruling the Appellate Division defined neglect by quoting the law. "[A] party seeking to establish neglect must show, by a preponderance of the evidence, first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship" (Nicholson v Scoppetta)."

The standard for neglect is that the petitioner (Chenango County DSS) must show by a preponderance of credible evidence that the "child has been harmed or threatened with harm. 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"

While the upper courts always give deference to the lower courts, as they did in this case, the court ruled that the petitioner had failed to meet the burden of proof, and therefore the case had to be reversed. Furthermore, the court made several points in relation to the subject of neglect.

First, the Appellate Division stated that "Proof that respondent has failed to meet his child support obligations does not, by itself, rise to the level of neglect." In other words, there was no evidence the child was harmed by the father's failure to pay child support of $50 a month. Indeed, the child was being well cared for.

Secondly, while the court stated that verbal and physical altercations between the father and mother were inappropriate, it also had the following to say:

"We further find that petitioner has failed to meet its burden of demonstrating by a preponderance of the evidence that respondent's conduct in engaging in verbal and physical altercations with Heather OO. impaired or posed an imminent danger of impairing Alyssa's physical, mental or emotional condition. While the parties agreed that they frequently argued with one another, and that such verbal disputes often involved screaming and hollering, with respondent ultimately leaving the home before things escalated, such proof does not constitute the level of conduct that has been found to serve as a basis for neglect (see Matter of Anthony PP., 291 AD2d 687, 688 [2002]). Although there was evidence that respondent and Heather OO. engaged in a number of physical altercations, there was no proof that Alyssa was present in the home during any such altercations, with the exception of an October 2004 incident. As to that incident, the record is devoid of proof that physical injury resulted to any participant or that Alyssa — who was then an infant and in a crib upstairs — witnessed or was otherwise aware of the incident..."

Finally, on the issue of going for domestic violence counselling, the court said, "Nor was there any evidence to support petitioner's assertion that respondent neglected Alyssa by failing to obtain counseling for domestic violence. No evidence was presented establishing that respondent was ever required to obtain such counseling. Moreover, respondent's testimony that he went to a counselor and discussed the domestic issues between he and Heather OO. went unrebutted."

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