State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 23, 2017 522768
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In the Matter of CAMERON O.
and Others, Alleged to be
Neglected Children.
OTSEGO COUNTY DEPARTMENT OF MEMORANDUM AND ORDER
SOCIAL SERVICES,
Respondent;
SCOTT O.,
Appellant.
(And Another Related Proceeding.)
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Calendar Date: January 18, 2017
Before: McCarthy, J.P., Lynch, Devine and Mulvey, JJ.
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Susan Patnode, Rural Law Center of New York, Castleton
(Cynthia Feathers of counsel), for appellant.
Susan M. Lettis, Otsego County Department of Social
Services, Cooperstown, for respondent.
William Koslosky, Utica, attorney for the child.
Dennis B. Laughlin, Cherry Valley, attorney for the
children.
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Mulvey, J.
Appeal 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
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pursuant to Family Ct Act article 10, to adjudicate respondent's
children to be neglected.
Respondent 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.
We 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 AD3d 1002, 1004 [2016] [citations
omitted]; see Family Ct Act §§ 1012 [f] [i] [B]; 1046 [b];
Matter of Javan W. [Aba W.], 124 AD3d 1091, 1091 [2015], lv
denied 26 NY3d 905 [2015]; Matter of Daniel X. [Monica X.], 114
AD3d 1059, 1060 [2014]). "There are two prongs: actual or
imminent danger, and failure to exercise a minimum degree of
care" (Matter of Javan W. [Aba W.], 124 AD3d 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
AD3d 1199, 1199 [2014] [internal quotation marks, brackets and
citations omitted]; see Matter of Daniel X. [Monica X.], 114 AD3d
at 1060; Matter of Lamarcus E. [Jonathan E.], 94 AD3d 1255, 1256
[2012]).
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Respondent 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 NY3d 357, 370 [2004]; see
Matter of Emmett RR. [Scott RR.], 134 AD3d 1189, 1191 [2015];
Matter of Daniel X. [Monica X.], 114 AD3d at 1060). "[G]iving
due deference to Family Court's . . . determinations of the
witnesses' credibility" (Matter of Marcus JJ. [Robin JJ.], 135
AD3d at 1005; see Matter of Emmett RR. [Scott RR.], 134 AD3d at
1191), we find adequate support in the record for Family Court's
finding of neglect.
McCarthy, J.P., Lynch and Devine, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court