The New York City Administration for Children's Services (hereinafter "Petitioner") commenced this Article 10 child protective proceeding against respondent parents with the filing of a neglect petition dated, March 15, 2010. On September 15, 2010, a fact-finding hearing was [*2]commenced with respect to the allegations set forth in the neglect petition only as to respondent father (hereinafter "RF").^[FN1] At the conclusion of Petitioner's case RF moved for dismissal of the instant neglect petition on the basis that Petitioner failed to establish a prima facie case of neglect. The issue before the Court is whether Petitioner has presented sufficient evidence to meet its burden of proof to establish a "prima facie" case of neglect against RF.

BACKGROUND

The petition alleges on or about March 11, 2010, law enforcement reported a large amount of drugs were found in the parent's home resulting in their arrest and the subject child Isaiah, almost age two, was present in the home at the time. The petition further alleges that law enforcement found marijuana in a glass jar under the bathroom sink in reach of the subject child and the home had been under surveillance by law enforcement with two (2) earlier purchases of marijuana made at the case address. Based on these allegations the petition asserts the parents failed to exercise a minimum degree of care with proper supervision or guardianship rendering the subject child a neglected child as defined by NY Family Court Act (hereinafter "FCA") section 1012(f)(i)(B).

During the fact-finding hearing (commenced on September 15, 2010) Petitioner presented the testimony of Detective J. L. Vargas, a member of the New York City Police Department (hereinafter "NYPD"), and the testimony of Ms. N. Outten, a Child Protective Specialist, assigned to investigate the allegations set forth in the instant petition. In addition, Petitioner moved into evidence duly certified copies of a NYPD property clerk invoice in connection with the seven (7) zip lock bags of marijuana seized at RF's home on March 11, 2010 (Exhibit "1") and a NYPD laboratory report confirming a sample analysis of the substances seized from RF's home was identified as marijuana (Exhibit "2"). Petitioner also submitted into evidence a copy of the Oral Report Transmittal (Exhibit "3") dated March 11, 2010, which commenced the instant child protective investigation.

Detective Vargas testified he has been a member of the NYPD for twelve (12) years and assigned to the Bronx narcotics unit for the past five (5) years. The detective further testified he and six (6) other members of the narcotics squad executed a search warrant of RF's home during the early morning hours of March 11, 2010. Detective Vargas testified that when he and his fellow officers entered the home the RF was found sleeping on the living room couch and the RM and subject child were sleeping in the bedroom. Detective Vargas further testified a search of the home resulted in the seizure of several bags of marijuana found in the cabinet under the bathroom sink. The RF and RM were arrested and the subject child was removed from the home. On cross examination, Detective Vargas testified that the bathroom cabinet was equipped with a pull door knob and the marijuana was found in a glass jar sealed with a lid along with several other cleaning materials.

Ms. Outten, the child protective investigator, testified RF acknowledged living at the case [*3]address, however, denied the marijuana found in the home belonged to him. Ms. Outten further testified that she observed the subject child Isaiah walking and using his hands during the course of her investigation. On cross examination, Ms. Outten stated that during her visit to the home she observed the bathroom sink cabinet, which sat low on the bathroom floor, with a pull door knob that was easy to open. She also testified RF's home was clean and observed RF's interaction with the subject child to be positive and appropriate.

LEGAL ANALYSIS

The issue before the Court is whether Petitioner has presented sufficient evidence to meet its burden of proof to establish a "prima facie" case of neglect against RF. In determining RF's motion to dismiss the Court first turns to NY Civil Practice Law and Rules (hereinafter "CPLR") section 4401 which states in relevant part:

"Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admission."

The term "burden of proof" embraces two concepts: the burden of producing evidence, and the burden of persuasion. Prince-Richardson On Evidence, section 3-201. In a child protective proceeding brought under Article 10 the moving party bears the burden of producing sufficient evidence to establish a "prima facie" case of neglect or abuse based upon the allegations contained in the petition. Further, the moving party has the burden of persuasion to establish proof of neglect or abuse by a preponderance of the evidence. FCA, §1046 (b)(i).^[FN2]Hence, the Court must be satisfied when Petitioner completes the presentation of their case and rests, there is sufficient evidence to provide a rational basis for the Court to enter a finding of neglect or abuse after according Petitioner every favorable inference which can be reasonably drawn from the evidence presented. Prince-Richardson On Evidence, section 3-201.

The relevant substantive law governing RF's motion to dismiss for failure to establish a "prima facie" case of neglect is governed by FCA, section 1012 (f)(i)(B), which defines a neglected child as:

"a child less than eighteen years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or person legally responsible for his care to exercise a minimum degree of care in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof,...by misusing a drug or drugs; ...or by any other act of a similarly serious nature requiring the aid of the court."

In Nicholson v. Scopetta, the New York Court of Appeals specifically addressed the elements embodied in FCA, section 1012(f), which must be shown to support a determination of neglect. Nicholson v. Scopetta, 3 NY3d 357, 368 (2004). The party seeking to establish neglect, in this case Petitioner, must show the child's physical, mental, or emotional condition has either been [*4]impaired or is in imminent danger of becoming impaired. Id. Moreover, imminent danger of harm to the child means more than just a possibility of harm. It means the danger of harm is near or impending. Id. at 369. Additionally, Petitioner must also show that the actual or threatened harm to the child is a consequence of the failure of the caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship. Id.

The statute, therefore, requires as a perquisite to a finding of neglect, proof of actual (or imminent danger of) physical, emotional or mental impairment to the child. Once Petitioner establishes proof of actual or imminent danger of impairment to the child, Petitioner must then present sufficient evidence to establish a causal connection between the basis for the neglect petition and the circumstances that allegedly produced the child's impairment or imminent danger of impairment. Id. As such, the actual or imminent impairment to the child must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care. Id. at 370.

Here, the evidence Petitioner presented during their direct case fails to establish a "prima facie" case of neglect. Evidence of the NYPD seizure of seven (7) zip lock bags of marijuana in a closed glass jar inside the bathroom cabinet of the RF's home, without more, is insufficient to satisfy the first element of neglect as set forth in FCA section 1012(f). Petitioner presented no evidence whatsoever of any actual (or imminent danger of) impairment to the child arising from the drugs seized in RF's residence. Instead, Petitioner attempted to show through the testimony of the child protective worker that the child was old enough to walk and able to use his hands and, therefore, was in imminent danger of impairment because the contraband was within his reach. In this Court's view, however, this evidence established only a mere possibility of the danger to the child.

In the case In re Charisma the 1st Appellate Department reversed the trial court's finding of neglect where the police seized contraband in the home of the respondent mother where she lived with her mother and children. The Court found that none of the contraband was in plain view and there was no evidence to establish that the contraband belonged to the respondent mother. In re Charisma D. 67AD3d 404 (1st Dept. 2009). In the instant case, the marijuana the police seized from RF's home was found inside zip lock bags that were further enclosed in a glass jar within a bathroom cabinet with a door and knob on it. Therefore, as In re Charisma D., there is undisputed evidence here that the marijuana seized in RF's home was not in plain view.

Moreover, Petitioner presented no evidence to establish that RF's failed to exercise a minimum degree of care in providing the child with proper supervision or guardianship. There was no evidence to establish a casual connection between the conduct and actions of the RF and the actual impairment or imminent danger of impairment of the child. In fact, Petitioner presented no evidence the marijuana seized in the home belonged to RF or that he was even aware there was marijuana in the bathroom cabinet. The only evidence Petitioner presented was that both parents were arrested at the time the drugs were seized in the home.

Therefore, according Petitioner every favorable inference that can be drawn from the evidence the Court is unable to conclude a legal basis exists for entering a finding of neglect against RF. [*5]There was no evidence presented to establish imminent danger of impairment to the child and no evidence to establish any harm to the child resulted from an unwillingness or inability of RF to exercise a minimum degree of care. Hence, Petitioner has failed to establish the child Isaiah is a neglected child as defined by FCA, section 1012(f)(i)(B).

CONCLUSION

Based on the foregoing, the Court finds Petitioner has failed to establish a "prima facie" case of neglect in the instant case. Accordingly, RF's motion seeking dismissal of this neglect petition for failure to establish a "prima facie" case of neglect is granted, and the petition, is hereby dismissed in its entirety. This constitutes the decision and order of the Court.

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Hon. Jeanette Ruiz, JFC