Respondent, Dominic C.'s motion to dismiss the action because the Administration of Children's Services failed to prove a prima facie case is granted.

Leiah N. and Dominic C. are the parents of Addis C. (DOB 9/18/2010) and Ababa C. (DOB 5/13/2012). ACS filed a child neglect petition against both parents under FCA §1012(f) (i) (b). It alleged that the father committed domestic violence in front of the children subjecting them to "emotional and physical harm or risk thereof" and because the parents "misus[ed] a drug or drugs" and neither parent was "voluntarily and regularly participating in a drug rehabilitation program".

Since Ms. N. stated she intended to relocate to Florida, on September 11, 2012, Judge Stewart Weinstein ordered the children's release to the mother while ACS conducted an Interstate Compact on the Placement of Children (ICPC) with Florida. An approved ICPC would enable ACS to continue supervision in Florida by its Children's Homes Services for ACS. The order stated that until the ICPC's completion, ACS' retained jurisdiction over the children "sufficient to determine all matters in relation to custody, care and disposition of the children as if they remained in New York." But the release was not based on ACS supervision.

Ms. N. testified Mr. C. hit her, but she did not recall being kicked, punched, thrown to the ground, her life threatened, or a scissors held to her neck. She said she had not been in pain. She that the incident took place in the bedroom, but did not remember if Addis was present.

The next incident allegedly took place February 24, 2011. According to the DIR the police responded to a complaint Ms. N. made at the Kings County Family Justice Center that alleged Mr. C. choked, kicked and slapped her. As a result she had pain and a welt.

Mr. C. was arrested on March 8, 2011. He pleaded guilty to assault in Criminal Court. In the allocution he admitted he punched Ms. N., causing her pain, that resulted in bruises about her neck and body. Addis was not mentioned in the allocution. The Court issued a five year full stay-away order of protection in favor of Ms. N. against Mr. C. effective until March 7, 2016. The Court did not include Addis in the order of protection.

The petition cited a September 10, 2011 incident when a third-person called police because the parties' were arguing in the children's presence. Ms. N. testified that she did not fear the respondent during the argument. The police asked to see the children, but the respondents refused to let them do so.

Ms. Michel visited the home on May 13, May 16, & May 17, 2012. On May 15, she raised marijuana use with Mr. C. and he refused services. He told her he cared for Addis when Ms. N. was at work and agreed to meet the next day. Ms. Michel attested to the fact Mr. C. was an excellent caregiver and did not believe Mr. C. posed a risk to the children Ms. Michel found no safety issues when she visited the home on May 16.

On May 16, the parents, Addis, Ms. Michel and her supervisor met to discuss how the family functioned. After the meeting, they were given referral services for when Ababa was released from the hospital.Ms. Michel testified she knew that between the September 2011 incident and May 2012, no domestic violence ORTs (Oral Report Transmissions) were called in relating to the parties.

She testified that she did a clearance on the father. She also contacted the District Attorney's office to verify if there was an active order of protection.The May 23, 2012, DIR indicates domestic-violence police officers, and ACS conducted a home visit solely to arrest Mr. C. because he violated a full stay-away order of protection. There were no injuries, no photographs and the children did not appear abused. ACS knew Mr. C. resided at Ms. N.'s for some time before this arrest. Mr. C. even opened the door. Ms. N. did [*3]not call the police.

On June 20, 2012, Mr. C. pleaded guilty to contempt of Court. According to the transcript Mr. C. admitted in his allocution he knew he violated the order of protection when he went to Ms. N.'s home. The order of protection was extended until June 19, 2017. It did not name the children but left issues regarding the children subject to Supreme Court and Family Court orders.

A prima facie case of neglect may be established by evidence of (1) an injury [or imminent risk of injury] to the child that ordinarily would not occur absent an act or omission by the respondents, (2) that respondents were the caretakers of the child when the injury occurred. In re Kayla C (19 AD3d 692 [2nd Dept 2005].) ACS did not meet its burden.

Nicholson v Scoppetta (3NY3d 357, 369 [2004]) held that to establish neglect an agency must prove, 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."

The case requires proof of actual or imminent danger of harm and not a reaction to what "might be deemed undesirable parental behavior." (Id, at 369.) Imminent danger must be "near or impending, not merely possible." (Id.) The Court required "a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child's impairment or imminent danger of impairment" (Id.)

Here, ACS failed to meet its burden of proof.

The Court admitted the DIRs into evidence as a group and it excluded portions that amounted to hearsay not covered by the business record exception. This includes statements in DIRs containing facts where the source was a third-party or Ms. N.. Neither Ms. N. nor a third-party had a duty to speak to the officers. This applies to statements in the September, and February DIR and especially to the September DIR. (Matter of Christy C., 74 AD3d 561, 562 [2d Dept 2010].)

The Court finds Ms. N. was struck by Mr. C. in November causing a bruise. The report stated child abuse did not occur. Ms. N. could not remember if Mr. C. choked her, pushed her to the ground; or kicked her. And, she specifically did not remember Addis's proximity to the altercation.

Even while allowing for hearsay in the DIR, the entire November DIR is inadmissible. The incident occurred on November 6, 2011, and the report is dated November 4.

Thus, ACS presented proof of domestic violence, but no imminent danger to a child or even risk to a child because of the domestic violence.

Yet, even if the Court admitted the DIR to show why the officers went to the home, and not as proof whether there was an argument, the DIR itself does not explain why this "argument" resulted in a police response, whether there was domestic violence, or why the officer asked to check on the children. Since ACS did not prove domestic violence took place or any child was at risk, this incident does not support a neglect finding.

Mr. C.'s May 23, 2012 arrest cannot support a neglect finding.

Ms. Michel testified that Mr. C. did a good job caring for Addis and admitted that no Court or agency required Ms. N. to enforce her order of protection. (Matter of Alyssa OO 68 AD3d 1158 [3rd Dept 2009].) She had no reason to participate in Mr. C.'s arrest.

For the Court to find neglect, ACS must prove the drug posed an imminent risk of impairing the child's physical, mental or emotional condition or the drug use prevented the parents from properly supervising the child. It did neither. It is not the agency's job to police parental behavior absent risk to children. The drug allegations cannot support a neglect finding.

The Court posits, that petitions should not only state what the parents did and then claim it met the statutory definition but they should state the specific danger or imminent danger actually caused or likely to be the result of what occurred. For example, here alleged Addis was in Ms. N.'s hands when Mr. C. hit her. But, it did not state why that posed a risk to Addis. The petition could have alleged imminent danger because Mr. C. might have hit Addis due to his close proximity or because when she fell to the ground it posed an imminent risk to Addis. Though it might seem obvious, causation is a necessary element. (Until ACS had Ms. N.'s full cooperation, its attorneys should not have filed based on DIR's containing inadmissible hearsay.) The allegation based on Mr. C.'s arrest would obviously stand-out to ACS counsel as a claim that had no causal relationship, especially based on Ms. Michel's statements about Mr. C. and the children. While each case might differ in the need for specificity, this proposal would place respondents on notice about what occurred and facts that formed the causation of the material element — the current or imminent risk. These cases should not reflect the government's views on proper parental behavior or seek findings as a punitive measure.

Perhaps, petitions reflecting the Nicholson factors might help parents and their attorneys to quickly evaluate equate the alleged action and stated danger or imminent danger, enabling them to understand, before an emergency hearing, why ACS or the Court remanded a child. This might reduce FCA §1027 and §1028 hearings held. Parents should never have to wait until after a §1027 or §1028 hearing to discover the danger or imminent risk alleged.

This constitutes the decision and order of the Court.