Errol M. had two children, ages 9 and 16 and was separated from their mother. He visited his children regularly at their great-aunt's house where they lived with their mother and began to suspect that their mother was using drugs again. He did not have any proof, however, because the younger child had a rash, he made an anonymous call to ACS, New York City's version of Child Protective Services, and told them the mother was neglecting the child's medical condition.
A caseworker found that the mother had been properly treating the child, but during an interview with the older girl, learned that the older girl suspected the mother was using drugs again and referred the mother for a drug test. The mother tested positive for cocaine. The agency then initiated neglect proceedings against the father for failing to call ACS earlier about his suspicions the mother was taking drugs, and Judge Gayle P. Roberts of Bronx County Family Court found that Errol M. had neglected his children.
That was May 22, 2009. On March 20, almost two years later and only two days ago, the Appellate Division, First Department of the New York Supreme Court, unanimously reversed Judge Roberts' decision.
In its decision the court said:
"This is not an instance where the parent took no steps to protect the children and elected to turn a blind eye (compare Matter of Joseph Benjamin P. [Allen P.], 81 AD3d 415 [2011], lv denied 16 NY3d 710 [2011]; Matter of Albert G., Jr. [Allen G., Sr.] 67 AD3d 608 [2009]). As noted, it was the father's anonymous phone call that alerted ACS to a problem and that led to its investigation. While the father could have acted sooner to involve ACS based upon his mere suspicion that the mother was using drugs, "the statutory test is minimum degree of care — not maximum, not best, not ideal" (Nicholson v Scoppetta, 3 NY3d 357, 370 [2004] [internal quotation marks omitted]). The Family Court's finding of neglect under these circumstances placed the father in a "Catch-22" situation — once he had failed to act promptly based upon his suspicion, he was faced with the dilemma of involving ACS and risk subjecting himself to a neglect proceeding for not having contacted ACS sooner, or not involving ACS to the detriment of his children. Respondent's actions here did not rise to the level of neglect."
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