MENDOZA OSORIO

Cite as 26 I&N Dec. 703 (BIA 2016) Interim Decision #3856

Matter of Henry Javier MENDOZA OSORIO, Respondent

Decided February 9, 2016

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The offense of endangering the welfare of a child in violation of section 260.10(1) of

the New York Penal Law, which requires knowingly acting in a manner likely to be

injurious to the physical, mental, or moral welfare of a child, is categorically a “crime of

child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012).

FOR RESPONDENT: Xavier A. Palacios, Esquire, Mineola, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Mele Moreno, Assistant

Chief Counsel

BEFORE: Board Panel: MALPHRUS, MULLANE, and MANN, Board Members.

MALPHRUS, Board Member:

In a decision dated April 14, 2015, an Immigration Judge ordered the

respondent removed from the United States. 1 The respondent has appealed

from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Ecuador and a lawful

permanent resident of the United States. The record reflects that he was

convicted on December 10, 2013, of endangering the welfare of a child in

violation of section 260.10(1) of the New York Penal Law. On the basis of

that conviction, the Department of Homeland Security (“DHS”) charged the

respondent with removability under section 237(a)(2)(E)(i) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012), as an

alien convicted of a “crime of child abuse, child neglect, or child

abandonment.” The Immigration Judge found that the respondent is

removable as charged and that he did not seek any relief from removal.

1

The Immigration Judge also noted that the respondent’s removability was previously

determined in an order dated March 31, 2015, which was incorporated by reference.

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II. ANALYSIS

The respondent only contests the Immigration Judge’s finding of

removability, arguing that the offense of endangering the welfare of a child

in violation of section 260.10(1) of the New York Penal Law is not

categorically a “crime of child abuse, child neglect, or child abandonment”

under section 237(a)(2)(E)(i) of the Act. Specifically, he asserts that the

crime defined in section 260.10(1) is broader than the definition of child

abuse that we have previously articulated. We review this question of law

de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2015).

As we first stated in Matter of Velazquez-Herrera, 24 I&N Dec. 503

(BIA 2008),

[we] interpret the term “crime of child abuse” broadly to mean any offense

involving an intentional, knowing, reckless, or criminally negligent act or

omission that constitutes maltreatment of a child or that impairs a child’s

physical or mental well-being, including sexual abuse or exploitation. At a

minimum, this definition encompasses convictions for offenses involving the

infliction on a child of physical harm, even if slight; mental or emotional harm,

including acts injurious to morals; sexual abuse, including direct acts of sexual

contact, but also including acts that induce (or omissions that permit) a child to

engage in prostitution, pornography, or other sexually explicit conduct; as well as

any act that involves the use or exploitation of a child as an object of sexual

gratification or as a tool in the commission of serious crimes, such as drug

trafficking.

Id. at 512 (emphasis added). In Matter of Soram, 25 I&N Dec. 378, 381

(BIA 2010), we further clarified that the term “crime of child abuse” is not

limited to offenses that require proof of actual harm or injury to a child and

that crimes of child neglect and abandonment are included in our definition

of child abuse. In addition, we determined that because States use a variety

of terms to describe the degree of threat required under endangerment-type

offenses, “a State-by-State analysis is appropriate to determine whether the

risk of harm required by the endangerment-type language in any given

State statute is sufficient to bring an offense within the definition of ‘child

abuse’ under the Act.” Id. at 381−83.

The United States Court of Appeals for the Second Circuit, in whose

jurisdiction this case arises, held that our precedent decisions provided a

reasonable interpretation of a statutory ambiguity and accorded them

deference under Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). Florez v. Holder, 779 F.3d 207, 209,

211−14 (2d Cir. 2015), petition for cert. filed sub nom. Florez v. Lynch,

84 U.S.L.W. 3280, 2015 WL 6774583 (U.S. Nov. 5, 2015) (No. 15-590);

accord Hackshaw v. Att’y Gen. of U.S., 458 F. App’x 137 (3d Cir. 2012);

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Martinez v. U.S. Att’y Gen., 413 F. App’x 163 (11th Cir. 2011). But see

Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013). The alien in Florez, who

was also convicted under section 260.10(1), conceded that our definition of

the phrase “crime of child abuse” was sufficiently broad to encompass a

violation of that section. Therefore the court did not reach the question

whether such a violation is categorically a “crime of child abuse, child

neglect, or child abandonment.” Florez v. Holder, 779 F.3d at 209−10.

Because this issue has been raised by the respondent, we address it here.

Section 260.10(1) of the New York Penal Law provides:

A person is guilty of endangering the welfare of a child when:

1. He or she knowingly acts in a manner likely to be injurious to the physical,

mental or moral welfare of a child less than seventeen years old or directs or

authorizes such child to engage in an occupation involving a substantial risk of

danger to his or her life or health . . . .

Although contained in a single sentence, section 260.10(1) is phrased in the

disjunctive and defines two discrete offenses: (1) taking action that is likely

to be harmful to a child’s welfare, and (2) allowing a child to work in a

dangerous occupation. See Florez v. Holder, 779 F.3d at 210 (stating that

section 260.10(1) “can be violated in two conceptually distinct ways”);

United States v. Beardsley, 691 F.3d 252, 268 n.11 (2d Cir. 2012) (noting

that “the statute does create two offenses”).

The respondent has not claimed that he was convicted of the second part

of section 260.10(1) or specifically explained how conduct punished under

that part of the statute would fall outside of our definition of a crime of

child abuse. Furthermore, he has not cited to any reported decision where a

defendant was convicted under that part of the statute, and we are unaware

of any decisions that explicitly discuss this aspect of section 260.10(1).

Under these circumstances, we are unpersuaded that the offense of directing

a child to engage in an occupation that involves a substantial risk of injury

or illness does not define a categorical crime of child abuse or neglect. We

therefore focus our inquiry on the first offense in the statute.

In employing the categorical approach to determine if a State crime is

comparable to a removable offense under the Act, we look to whether the

State statute defining the crime categorically fits within the Federal

definition of the corresponding offense. See Moncrieffe v. Holder, 133

S. Ct. 1678, 1684 (2013). The respondent argues that the offense of

endangering the welfare of a child under section 260.10(1) is not

categorically a “crime of child abuse, child neglect, or child abandonment”

under section 237(a)(2)(E)(i) of the Act because the New York statute is so

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broad that it encompasses conduct that falls outside of that phrase, as it was

defined in Matter of Soram and Matter of Velazquez-Herrera.

However, to establish that the New York offense is not a categorical

crime of child abuse, the respondent must do more than merely invoke the

statute’s breadth in general terms. He must show that there is a “realistic

probability” that the statute is, in fact, applied to punish conduct that does

not qualify as child abuse under the Act. See Moncrieffe v. Holder, 133

S. Ct. at 1684−85 (stating that the “focus on the minimum conduct

criminalized by the state statute is not an invitation to apply ‘legal

imagination’ to the state offense” and that “there must be ‘a realistic

probability, not a theoretical possibility, that the State would apply its

statute to conduct that falls outside the generic definition of a crime’”

(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007))). 2

A conviction for endangering the welfare of a child under the first part

of section 260.10(1) requires a showing that the defendant knew that his

actions were likely to result in physical, mental, or moral harm to a child.

People v. Portorreal, 939 N.Y.S.2d 805, 809 (N.Y. Crim. Ct. 2009). To act

“knowingly” under New York law, the defendant must have been “aware”

of the nature of his conduct and of the fact that his actions had the potential

for harm. See People v. Johnson, 740 N.E.2d 1075, 1076 (N.Y. 2000); see

also People v. Simmons, 635 N.Y.S.2d. 373 (N.Y. App. Div. 1995)

(holding that it was error to convict based on what the defendant “should

have known” because section 260.10(1) requires “actual knowledge”).

There must also be proof that the harm was “likely to occur, and not merely

possible.” People v. Hitchcock, 780 N.E.2d 181, 183 (N.Y. 2002).

These elements—a knowing mental state coupled with an act or acts

creating a likelihood of harm to a child—fit within our definition of a

“crime of child abuse, child neglect, or child abandonment” in section

237(a)(2)(E)(i) of the Act. However, the respondent argues that the New

York statute is overly broad because it proscribes a wide range of conduct

that is not specifically delineated, claiming that it therefore criminalizes

actions that were not contemplated to be child abuse or neglect under the

Act. We disagree.

2

This realistic probability standard, which has been applied by the Supreme Court to

determine whether an alien’s conviction was for an “elements-based” aggravated felony

under the Act, also applies in the context of removability under section 237(a)(2)(E)(i) of

the Act. See Matter of Francisco-Alonzo, 26 I&N Dec. 594, 599 (BIA 2015) (stating that

pursuant to Moncrieffe, in the context of the “broadly descriptive class of offenses in the

Act, such as ‘sexual abuse of a minor,’” we now “‘look only to the minimum conduct that

has a realistic probability of being prosecuted’ under the State statute” (quoting Matter of

Esquivel-Quintana, 26 I&N Dec. 469, 472 (BIA 2015), aff’d, Esquivel-Quintana

v. Lynch, No. 15-3101, 2016 WL 192009 (6th Cir. Jan. 15, 2016))).

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The respondent claims that various New York cases support his

argument that section 260.10(1) criminalizes conduct that is not within our

definition of child abuse because it does not constitute maltreatment of a

child. He mentions leaving a child unattended for a short period, driving

with a suspended license in the presence of a child, and committing petit

larceny in the presence of a child, but he has not provided citations to any

cases involving these circumstances. He did cite cases that he claims fall

outside our definition, but none of them resulted in a successful

prosecution because the defendant’s conduct did not constitute

endangering the welfare of a child under the New York statute. 3 Since

there was no conviction in any of these cases, they are unpersuasive in

establishing that there is a realistic probability that section 260.10(1) would

be successfully applied to conduct outside our definition of child abuse. 4

3

Farkas v. Barry, 335 F. Supp. 681 (E.D.N.Y. 1972) (accepting assurances by the

prosecuting attorney in a related case that section 260.10(1) is inapplicable to a parent

bringing a minor child to a lecture on birth control); People v. Kanciper, 954 N.Y.S.2d

146 (N.Y. App. Div. 2012) (finding insufficient evidence to support a conviction where

the defendant injected a dog with a tranquilizer in a child’s presence, but the child, who

was familiar with such medical treatments, was not upset by it and was unaware that it

was in preparation to euthanize the dog); People v. Campbell, No. 570557/01, 2003 WL

1907680 (N.Y. App. Term Apr. 3, 2003) (vacating the conviction where there was no

basis for the jury to conclude that the defendant created a likelihood of harm to children

seated in a stationary vehicle when he spun his car wheels as he drove past them); People

v. Cruz, 809 N.Y.S.2d 850 (N.Y. Crim. Ct. 2005) (finding a complaint to be facially

insufficient where a mother left her infant son in the care of a responsible adult neighbor

for about 20 hours); People v. Smith, 678 N.Y.S.2d 872 (N.Y. Crim. Ct. 1998) (granting a

motion to dismiss as facially insufficient an accusatory instrument alleging that the

defendant left four children between the ages of 5 and 13 home alone for 2 hours without

adult supervision or food); People v. Weyrick, 287 N.Y.S.2d 715, 716 (N.Y. City Ct.

1968) (dismissing an information charging the defendant with having a beer party with

minors present where nothing alleged that he “did anything to actually cause or permit

the life or limb of the minors to be endangered”); see also People v. Duenas, 742

N.Y.S.2d 468 (N.Y. App. Term 2002), aff’d sub nom. People v. Hitchcock, 780 N.E.2d at

184 (holding that the evidence was legally insufficient to conclude that the defendant was

aware that his conduct would likely be injurious to a child where he made a significant

effort to conceal a handgun and was unaware that a child knew it was in the house).

4

In arguing that there is a “realistic probability” that a defendant could be convicted for

conduct that violates section 260.10(1) but that does not constitute a “crime of child

abuse,” the respondent has also submitted copies of redacted complaints and charging

documents issued by the State of New York. We are not persuaded that a realistic

probability of a successful prosecution may be shown by looking only to a charging

document that did not necessarily result in a conviction. To be relevant to this inquiry,

there must be more than just a charging document, because a judge or jury may have

found that the facts as charged were insufficient to support a conviction.

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See Matter of Francisco-Alonzo, 26 I&N Dec. 594, 601 (BIA 2015)

(finding neither support for the contention that the State statute “could be

successfully applied to conduct” outside the Federal definition of a crime of

violence nor evidence of “any such successful prosecutions”); Matter of

Ferreira, 26 I&N Dec. 415, 420 (BIA 2014) (finding no support for the

contention that the State statute was “actually used to successfully

prosecute” offenses involving antique firearms).

The fact that there are numerous reported cases finding the offender’s

conduct insufficient to support a conviction shows that the breadth of

section 260.10(1) has significant limits. People v. Hitchcock, 780 N.E.2d

181, a case involving guns decided by the highest court of New York,

illustrates that while section 260.10(1) potentially covers a broad range of

conduct, acts that risk harm or actually result in harm to a child may still

not meet the statute’s threshold requirement that the offender knowingly

acted in a manner likely to be harmful to a child’s welfare. 5

The case involved two defendants, Hitchcock and Duenas, both of

whom were charged with endangering the welfare of a child following

accidents in which one child used the defendant’s gun to shoot another

child. Hitchcock had 23 firearms in his home, including semiautomatic

weapons and an assault rifle, most of which were openly accessible. At

least one weapon was loaded, and ammunition for the others was nearby.

Hitchcock testified that he had shown a 14-year-old living in his home how

to load and shoot the guns and that he suspected they had been tampered

with in his absence. The court took these facts into consideration in

concluding that the evidence was legally sufficient to convict Hitchcock

because it was reasonable for the jury to infer that he knowingly kept guns

in a manner likely to be injurious to children living in or near his home.

In contrast, Duenas had only one gun in his home and had made a

significant effort to conceal it. There was no evidence that anyone else in

the household knew about the gun, and Duenas was unaware that his

younger brother had secretly seen him cleaning it in his bedroom. In these

circumstances, the court found that the evidence was legally insufficient

to conclude that Duenas was aware that his conduct would likely be

injurious to a child. Thus, although both defendants possessed handguns

5

Other cases that illustrate limits on the reach of section 260.10(1) involve the

possession of marijuana in the presence of children. Compare People v. Alvarez, 860

N.Y.S.2d 745, 749 (N.Y. Crim. Ct. 2008) (concluding that the factual allegations were

facially sufficient where there was a reasonable inference from the strong, pervasive odor

of marijuana in an apartment that it was recently used illegally in the presence of young

children), with People v. Grajales, 686 N.Y.S.2d 608, 609 (N.Y. Crim. Ct. 1999)

(granting a motion to dismiss, finding that merely having marijuana in an apartment with

a child present was not sufficient to sustain the charges).

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that resulted in harm to a child, Duenas’ conduct did not meet the

legal requirements for conviction under section 260.10(1). This case

demonstrates that there are, in fact, significant limits to the sweep of the

statute, contrary to the respondent’s assertion.

Prior to our decision in Matter of Soram, the Second Circuit issued an

unpublished opinion, noting that the statute was broad and remanding for us

to clarify whether the minimal conduct encompassed by a conviction under

section 260.10(1) constitutes a crime of child abuse or neglect. Guzman

v. Holder, 340 F. App’x 679 (2d Cir. 2009). The court listed a number of

New York cases, some of which the respondent has also cited. In our view,

each of the cases cited in Guzman involved conduct that the defendant

knew would pose a substantial risk of harm to a child in the totality of the

circumstances and would therefore qualify as a crime of child abuse or

neglect. See, e.g., People v. Manon, 640 N.Y.S.2d 318 (N.Y. App. Div.

1996) (sustaining the conviction of a mother who kept her infant son in

extremely unsanitary conditions without necessary medical attention, which

resulted in his death from malnutrition and dehydration); People v. Afia,

843 N.Y.S.2d 906 (N.Y. Crim. Ct. 2007) (convicting a school minibus

attendant who was responsible for the safety of special needs children and

knowingly failed to check for sleeping students, as instructed, which left a

7-year-old passenger alone on the bus for several hours in an unfamiliar

location miles away from school). 6

6

Other cases cited in Guzman involved pretrial motions to dismiss the charges as

facially insufficient, asserting that the factual allegations did not provide reasonable cause

to believe that the defendant committed the offenses charged. See N.Y. Crim. Proc. Law

§§ 100.15, 100.40 (McKinney 2015). Under this standard, a guilty inference can be

drawn based on the facts alleged and the reasonable inferences that logically flowed from

them. See People v. Deegan, 509 N.E.2d 345 (N.Y. 1987) (stating that the legal context

for a motion to dismiss concerns “whether the facts, if proven, and the inferences that

logically flow from those facts supply proof of every element of the charged crimes” and

whether “the Grand Jury could rationally have drawn the guilty inference”). We

conclude that these cases also involved child abuse or neglect because serious, potentially

harmful conduct was alleged, particularly when considering the reasonable inferences

that could be drawn from the facts. See, e.g., People v. Ambers, 840 N.Y.S.2d 533 (N.Y.

Crim. Ct. 2007) (denying a motion to dismiss because it could be reasonably inferred

from the factual allegations that the defendant knowingly permitted her children to live in

a home so filled with garbage, rat feces, insects, and rotten food that it was likely to be

injurious to their health); People v. D’Ambrosia, 746 N.Y.S.2d 556 (N.Y. Just. Ct. 2002)

(finding that the allegations supported the charge where the defendant drove while

intoxicated at a speed well over the limit, creating a serious risk of an accident that would

likely result in injury to a child in the car); People v. Suquisupa, 637 N.Y.S.2d 302 (N.Y.

Sup. Ct. 1996) (finding that allegations the defendant sold fireworks to an unsupervised

13-year-old child were sufficient to support the charge).

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The respondent raises issues that were noted in Guzman, arguing that

because section 260.10(1) does not require that there be any actual harm to

a child or that the conduct be directed toward the child, the statute prohibits

conduct that is broader than the Federal crime of child abuse defined by our

precedent decisions. This argument is unavailing, however, because we

addressed the question of harm subsequent to Guzman and held that our

definition of child abuse is not limited to offenses that require proof of

harm or injury to the child. Matter of Soram, 25 I&N Dec. at 381.

Furthermore, the Second Circuit has approved our conclusion in this regard.

Florez v. Holder, 779 F.3d at 212.

In Florez, the court noted that Guzman had questioned whether our

definition of child abuse was broad enough to include child endangerment

statutes like section 260.10(1), which criminalize conduct that did not

actually harm a child. Id. at 211. The court observed that this definition

is intentionally expansive, “consistent with the legislative purpose behind”

section 237(a)(2)(E)(i) of the Act. Id. at 213. However, it explained

that under Soram, the definition is not unlimited because “a state

child-endangerment statute qualifies as a ‘crime of child abuse’ under the

[Act] only if it requires, as an element of the crime, a sufficiently high risk

of harm to a child.” Id. at 212. The court upheld our definition because it

includes the required level of risk of harm to a child, recognizing that this

limitation ensures that our treatment of such statutes “remains within the

realm of reason.” Id.

Although Florez did not specifically address the issue of conduct that

was not directed at a child, we have reviewed New York cases that

involved defendants who were convicted under section 260.10(1) for

committing acts that were not directed at a child. See, e.g., People

v. Johnson, 740 N.E.2d at 1075−76 (children witnessed the defendant

knock their mother down in the street and drag her home, then listened to

him beat and yell at her for 10 hours while she screamed); People

v. Meseck, 860 N.Y.S.2d 263 (N.Y. App. Div. 2008) (children witnessed

the defendant confine their mother for 4 hours while he yelled at her, called

her names, and threatened to kill her with a baseball bat); People

v. Spickerman, 762 N.Y.S.2d 470 (N.Y. App. Div. 2003) (children

witnessed the defendant beat their mother, breaking her jaw and rupturing

her eardrums); People v. Brooks, 705 N.Y.S.2d 349 (N.Y. App. Div. 2000)

(defendant stabbed his estranged wife in the presence of their 3-year old

son); People v. Parr, 548 N.Y.S.2d 121 (N.Y. App. Div. 1989) (defendant

forcibly sodomized a 5-year-old child’s mother in the child’s presence). In

these cases the defendant was aware of the presence of the child when he

committed severe acts of violence against the child’s mother. Witnessing

such acts of domestic violence is likely to cause serious psychological and

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developmental damage to children, even if they are not themselves

subjected to physical abuse. People v. Johnson, 740 N.E.2d at 1077.

Therefore, even though the defendant’s conduct was not directed at a child,

we would consider it to be child abuse within our definition, given the high

risk of harm to the child.

We recognize that there are child endangerment statutes that do not

require a sufficiently high risk of harm to a child to meet the definition of

child abuse, neglect, or abandonment under the Act. For example, the child

endangerment statute at section 273a(b) of the California Penal Code

criminalizes conduct that places a child “in a situation where his or her

person or health may be endangered.” (Emphasis added.) In Fregozo

v. Holder, 576 F.3d 1030 (9th Cir. 2009), the Ninth Circuit held that this

statute did not categorically define a “crime of child abuse” within the

meaning of the Act. The court observed that the statute does not “require

that the circumstances create any particular likelihood of harm to a child”

and punishes “conduct that creates only the bare potential for nonserious

harm to a child.” Id. at 1037−38. In this regard, the court cited as an

example of facts that did not meet our definition of child abuse the case of a

parent “placing an unattended infant in the middle of a tall bed without a

railing, even though the child was never injured.” Id. Based on the facts as

construed by the court, we would agree that they do not, alone, define a

crime of child abuse or neglect.

A conviction under section 260.10(1) at issue here requires that the

defendant “knowingly engaged in conduct likely to be injurious to a child.”

People v. Hitchcock, 780 N.E.2d at 184. In reviewing this statute, we have

considered the totality of the circumstances presented in each case, rather

than viewing certain facts in isolation. 7 The New York cases that resulted

in a successful prosecution under the statute are those where the defendant

7

For example, Guzman cited two cases involving children left alone by the defendants

who sought to dismiss the charges of child endangerment under section 260.10(1).

People v. Watson, 700 N.Y.S.2d 651, 655 (N.Y. Crim. Ct. 1999) (denying a motion to

dismiss where a 7-year-old child was left alone for 2½ hours by a defendant entrusted

with his care in a locked apartment in the Bronx where “a wide range of dangers” could

befall the scared child); People v. Cenat, 671 N.Y.S.2d 578 (N.Y. Crim. Ct. 1997)

(denying a motion to dismiss where a mother left her two young children unsupervised in

a car on a New York City street for more than 2 hours). In these cases, there were

aggravating circumstances that exacerbated the risk of harm to the child, including the

child’s young age, the location where the offense occurred, and the length of time the

child was left alone. When viewed in the totality of the circumstances, particularly in the

context of a pretrial motion to dismiss where it is appropriate to consider reasonable

inferences that can be drawn from the facts alleged, these cases involve more than simply

leaving a child alone for a short period of time.

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had an awareness that his conduct posed a sufficiently high risk of harm to

a child to qualify the offense as a crime of child abuse or neglect under

section 237(a)(2)(E)(i) of the Act. Thus, while there are child

endangerment statutes that do not meet our definition, we conclude that

section 260.10(1) is not one of them.

III. CONCLUSION

Having considered the respondent’s arguments and the New York cases

he cited, we are unable to agree that he has shown a “realistic probability”

that section 260.10(1) would successfully be applied to conduct falling

outside our definition of child abuse or neglect. Moncrieffe v. Holder, 133

S. Ct. at 1693 (stating that an alien must “demonstrate that the State

actually prosecutes the relevant offense” in cases outside the Federal

definition). The respondent has also not relied on his own case to show

such a realistic probability, even though the record contains information

regarding his conviction. See Gonzales v. Duenas-Alvarez, 549 U.S. at 193

(stating that an alien must “at least point to his own case or other cases in

which the state courts in fact did apply the statute in the special

(nongeneric) manner for which he argues”). We therefore conclude that the

crime of endangering the welfare of a child in violation of section

260.10(1) of the New York Penal Law is categorically a “crime of child

abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i)

of the Act. Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

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