The opinion
Gesmer, J.
(dissenting). I respectfully dissent. The Family Court failed to make a finding that the respondent Melissa O.’s (mother) conduct impaired or threatened to impair her child’s physical, mental or emotional condition, and therefore had no basis to hold that she neglected the child. I would further find that there was no admissible evidence before the Family Court from which it could have made such a finding. Accordingly, I would reverse the decision of the Family Court.
In a child protective proceeding, petitioner has the burden to prove abuse or neglect by a preponderance of the evidence (Family Ct Act § 1046 [b] [i]).
*46 “[A] party seeking to establish neglect must show . . . 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” (Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; see also Family Ct Act § 1012 [f] [i] [B]).
Imminent danger “must be near or impending, not merely possible” (.Nicholson v Scoppetta, 3 NY3d at 369 ). While a parent’s mental illness may be an appropriate basis for a neglect petition under the right circumstances, “ ‘proof of mental illness alone will not support a finding of neglect’; the evidence ‘must establish a causal connection between the parent’s condition, and actual or potential harm to the children’ ” (Matter of Nialani T. [Elizabeth B.], 125 AD3d 672, 674 [2d Dept 2015]; see also Matter of Jayvien E. [Marisol T], 70 AD3d 430, 435-436 [1st Dept 2010]). “A finding of neglect should not be made lightly” (Matter of Jayvien E., 70 AD3d at 435 ).
In this case, the Family Court held a fact-finding hearing at which it heard testimony from the Administration for Children’s Services (ACS) caseworker and the mother, and received in evidence only three exhibits: the medical records of St. Barnabas Hospital, where the mother was hospitalized for 24 hours; the intake report from the Office of Children and Family Services (ORT); and a group of photographs of the child. In its decision, the Family Court found that the mother
“fails to provide the subject child . . . with proper supervision or guardianship in that [the mother] suffers from a mental illness which impairs her ability to care for [the child]. I further find that [the mother] has failed to take prescribed medication and has failed to engage in mental health services and that her conduct in failing to take prescribed medication and engage in mental health services constitutes neglect.”
This was erroneous for two reasons. First, it finds neglect without a finding, or any support in the record for a finding, that the child was harmed or at imminent risk of harm. Second, *47 it makes findings not supported by admissible evidence in the record. 1
I agree that the mother suffered from a mental illness, but that finding alone is insufficient for a neglect finding as a matter of law (Nicholson v Scoppetta, 3 NY3d at 368 ; Family Ct Act § 1012 [f] [i]). There is no evidence whatsoever in the record to support the other two elements necessary for a finding of neglect in this case: that the mother failed to engage in mental health treatment as recommended by physicians at St. Barnabas, and, more significantly, that the mother, as a consequence of her mental illness, failed to exercise a minimum degree of care for the child, resulting in harm or imminent risk of harm to the child.
The only facts that the Family Court could properly consider in finding neglect are those occurring prior to the date the petition was filed, May 16, 2013. 2 Those facts, based on the testimony and evidence at trial, are as follows. The mother states that she is from the Republic of the Congo, and has asylum status in the United States. The child was born on February 14, 2013. On May 11, 2013, the mother and child, accompanied by the mother’s sister, appeared in the emergency room of St. Barnabas Hospital. The mother told staff there that she believed her cousin had sexually assaulted her daughter, and asked that the child be examined. She also stated that she had been raped, and asked to be tested for sexually transmitted diseases.
The mother told hospital staff that approximately a month earlier, she and the child had left the home they had shared with the mother’s husband in Louisiana, due to domestic violence. The mother stated to St. Barnabas staff that she had *48 been in Texas, staying with her cousin who lives there. When she left to go to a motel, the mother was detained by the police, who brought her daughter to the cousin’s home and took the mother to a psychiatric hospital. After a one-week stay, she was discharged on May 10, 2013 pursuant to a court order. Immediately after her release, the mother and her sister retrieved the child from the cousin’s home, and flew to New York, arriving at St. Barnabas on May 11, 2013.
When the mother arrived at St. Barnabas with her sister and baby at approximately 11:30 a.m. on May 11, she was exhibiting “erratic behavior, screaming and upset . . . aggressive,” and the hospital staff were unable to take the mother’s vital signs. As a result, hospital staff restrained and sedated her. However, upon waking that evening, the mother was calm and cooperative, and spoke logically, and remained so until her discharge in “stable” condition at about noon the following day. The period of time during which the mother’s behavior at St. Barnabas was “aggressive” was at most a few hours. According to the psychiatrist who examined her on May 12, “she denie[d] hallucinations,” and also denied suicidal or homicidal thoughts or plans, “in particular toward her baby daughter.” Based on the psychiatric evaluation, she was psychiatrically cleared, and discharged with a 30-day supply of Ability and directions to follow up with Fordham Tremont Community Mental Health Center (Fordham Tremont) within seven days.
The next day, May 13, 2013, the ACS caseworker, Ms. Wallace, interviewed the mother at her sister’s home.
On May 16, 2013, ACS filed its petition. The child was placed with the maternal aunt, in whose home the mother also lived, on condition that the mother not be left alone with the child.
The Family Court’s conclusion that the mother suffered from a mental illness is supported by the records from St. Barnabas, which state that she was diagnosed with delusional disorder. The note by the psychiatrist who made that diagnosis further states that the mother was “calm, cooperative, with well articulated and goal directed speech, which is coherent.” He further found that the mother was “psychiatrically cleared” for discharge. This finding alone would not support a finding of neglect.
The Family Court and my colleagues in the majority base their determination that the mother did not take prescribed medication on the mother’s statement to the ACS caseworker on May 13, 2013, the day following her discharge, that she had *49 not taken the medication prescribed to her at St. Barnabas, and her statement to the caseworker and hospital staff that she had refused medication prescribed in Texas the week prior. Since she had only been out of the hospital in Texas for one day before she came to New York, she could only have failed to take the medication prescribed in Texas for one day. I would find that her failure to take the medication prescribed in Texas and by St. Barnabas for one day does not constitute a basis for a neglect finding. 3
The Family Court and the majority apparently based their conclusion that the mother had failed to engage in mental health services on a belief that she had failed to comply with St. Barnabas’s recommendation that she follow up with Ford-ham Tremont within seven days following her discharge on May 12, 2013; that is, by May 19, 2013. The only evidence to support the finding as to the mother’s noncompliance is the caseworker’s testimony that, at the time of her initial interview with the mother on May 13, 2013, the mother had not yet contacted Fordham Tremont. However, as of that date, she was not yet out of compliance with St. Barnabas’s recommendation; in fact, her time to do so had not even run on the date the petition alleging the mother’s noncompliance was filed, May 16, 2013. Accordingly, the record does not support a finding that the mother failed to comply with St. Barnabas’s recommendation that she follow up with Fordham Tremont for treatment by May 19, 2013. The majority notes that the caseworker testified that the mother told her she had not gone to Fordham Tre-mont by the seventh day. However, this testimony is directly contradicted by the medical records in evidence, which establish that the seventh day after the mother’s release from St. *50 Barnabas had not yet occurred when the caseworker interviewed the mother. 4
More importantly, there is no evidence to support the Family Court’s statement that the mother, as a result of her mental illness, failed to exercise a minimum degree of care for the child, or that this harmed or placed the child at imminent risk of harm. Indeed, the ACS caseworker testified that the mother is a "very loving mother” and “very nurturing,” that the mother attended to the child appropriately, that the child did not appear to be in any pain, but rather appeared “good,” and that the caseworker saw nothing wrong with the child.
The Family Court’s and the majority’s conclusion that the mother’s illness had an adverse effect on her child is apparently based on her having brought her daughter to St. Barnabas Hospital to be examined because she feared that her daughter had been sexually abused in Texas. Although the child was evaluated in the St. Barnabas pediatric department, no evidence was presented at the fact-finding hearing that the child was not well-cared for or was found to be in any distress. I respectfully disagree with the majority’s finding that the mother’s fear was “unfounded,” and that her taking the child to St. Barnabas was “unnecessary.” I find no support for such a finding in the record. Indeed, the Family Court did not make either of these findings. 5 Furthermore, there is absolutely no evidence in the trial record that the mother took the child to be examined for possible sexual abuse on any other occasion. Accordingly, the mother’s having taken the child to St. Barnabas on one occasion to address her concern is not an appropriate basis for a finding that the child was harmed or at imminent risk of harm by reason of the mother’s mental illness.
*51 There is also no evidence that the mother “ke[pt] unnecessarily checking her daughter for evidence of rape,” as the majority states. The St. Barnabas records include the mother’s statement to the evaluating psychiatrist in which she explained her fear that the child had been sexually abused by stating, “because as my daughter get constipated, and I use vasal [i]ne on cotton bud, which started to go high up in her rectum.” The ACS caseworker testified that the mother made a similar statement about this single incident to her. More importantly, there is no evidence that the mother’s use of a cotton bud to treat constipation on one occasion harmed the child in any way. 6 The Family Court was no doubt appropriately concerned about strange-sounding statements made by the mother to St. Barnabas staff and the ACS caseworker, as are my colleagues in the majority. However, the psychiatrist at St. Barnabas cleared the mother for discharge, and the caseworker observed that the mother appropriately cared for her child. Notably, at trial, the mother showed no sign of delusional thinking. In any event, the statements, without more, are insufficient for a finding of neglect.
To the extent that Family Court based its finding of neglect on incidents alleged to have occurred in Texas just prior to the mother’s hospitalization at St. Barnabas, I would find that there is insufficient evidence that the child was harmed or at imminent risk of harm during that period as well. Aside from the mother’s statements to St. Barnabas personnel, discussed above, the only evidence of those events was from the ORT and the mother’s statements to the ACS caseworker, upon which my colleagues in the majority rely heavily. The statements in the ORT concerning the events in Texas reflected the worker’s notes of a conversation with a child protective services worker in Texas who was first contacted on May 10, 2013, after the mother had left Texas. All of the information conveyed by the Texas worker appears to be hearsay, and we should not rely on it. As to the mother’s statements about the events in Texas, she admitted that the police took her to Green Oaks Hospital, that the police took her daughter to her cousin’s home, and that, upon the mother’s discharge several days later, the mother and her sister picked up the child and traveled together *52 to New York. There was no indication from the mother’s statements, or any other evidence, that the child was harmed or at imminent risk of harm during the events in Texas.
In light of the lack of actual evidence of injury to the child, ACS and the Attorney for the Child argue that “courts have found that paranoid behavior ... is sufficient to show risk of impairment to the child.” My colleagues in the majority appear to agree with this drastic change in the law. However, none of the cases cited by ACS, the Attorney for the Child, or in the majority opinion support this claim. In the majority of those cases, there was evidence that the child’s mental or physical condition was actually impaired due to the parent’s mental illness (Matter of Michael P. [Orthensia H. ], 137 AD3d 499, 500 [1st Dept 2016] [child’s teeth decayed, evidencing mentally ill mother’s failure to provide basic dental care]; Matter of Immanuel C.-S. [Debra C.], 104 AD3d 615 [1st Dept 2013] [mentally ill mother’s home in “deplorable condition,” and child had not seen doctor or dentist in several years]; Matter of Kiemiyah M. [Cassiah M.J, 137 AD3d 1279, 1280 [2d Dept 2016] [witness testified to seeing infant dressed only in diaper, shivering by open window while mother was distracted by delusions]; Matter of Yu F. [Fen W.], 122 AD3d 761, 762 [2d Dept 2014] [psychiatrist and hospital social worker testified that child would be at risk if returned to mother, because of her untreated mental illness]; see also Matter of Noah Jeremiah J. [Kimberly J.], 81 AD3d 37, 40 [1st Dept 2010] [mother’s psychiatrist testified about her mental illness and that, without medication, she could not care for son]). Similarly, the majority cites to Matter of Annalize P. (Angie D.) (78 AD3d 413 [1st Dept 2010]), where the mother was found to have failed to provide her children with adequate supervision, including by permitting the child to have five excused and 24 unexcused school absences in a school year. I do not disagree with my colleagues that a showing of imminent harm due to inadequate care is sufficient for a neglect finding. However, here, petitioner has not proved harm or imminent harm, or that the mother failed to provide adequate guardianship. It has shown only that she suffered from a mental health condition, which is not adequate for a neglect finding without more.
The only cases cited by ACS or the Attorney for the Child, or in the majority opinion, that do not include a description of actual harm to the child as a result of a parent’s mental illness specifically found that the mentally ill parent lacked insight *53 into the effect of the untreated mental illness, and that this affected the parent’s ability to care for the child 7 (Matter of Jolicia G. [Jacqueline G.], 130 AD3d 402, 403 [1st Dept 2015]; Matter of Jacob L. [Chasitiy P.], 121 AD3d 502 [1st Dept 2014]; Matter of Essence V., 283 AD2d 652 , 653 [2d Dept 2001]). 8 In Matter of Isaiah M. (Antoya M.) ( 96 AD3d 516 [1st Dept 2012]), cited by the majority, the mother, who was involuntarily hospitalized for a month, testified that she had auditory hallucinations telling her to harm her child (id. at 517). There is no such finding in this case, or any basis for one. Indeed, the evaluating psychiatrist at St. Barnabas determined that the mother denied any homicidal ideation, “in particular toward her baby daughter,” and psychiatrically cleared her for discharge.
These cases are distinguishable in other respects as well. In Matter of Jalicia G., this Court found that the child was in imminent harm because of the child’s exposure to domestic violence in the home ( 130 AD3d at 403 ). In Matter of Jacob L., the mother had multiple extended psychiatric hospitalizations and repeated relapses due to her noncompliance with treatment ( 121 AD3d at 502 ). 9 In Matter of Essence V, the Court specifically found that the mother was unable to care for the child without treatment, including medication (283 AD2d at 653). Moreover, none of those cases alter the rule that a neglect finding requires a determination that a child is impaired or at imminent risk of impairment as a result of the parent’s failure to provide a minimum degree of care, including as a *54 result of the parent’s mental illness (Nicholson v Scoppetta, 3 NY3d at 368 ; Matter of Jayvien E., 70 AD3d at 435-436 ). Finding only that a parent suffered from delusional disorder, persecutory type, is simply not sufficient for a finding of neglect. Since petitioner failed to show either that the mother’s mental illness caused her to fail to exercise a minimum degree of care for the child, or that the child was ever harmed or at imminent risk of harm as a consequence of such failure, I would reverse the Family Court order of fact-finding and dismiss the petition.
Richter and Gische, JJ., concur with Tom, J.P.; Saxe and Gesmer, JJ., dissent in an opinion by Gesmer, J.
Order of fact-finding, Family Court, Bronx County, entered on or about January 23, 2015, affirmed, without costs.
. Respectfully, and as discussed below, I also find no basis in the trial record for the additional findings by my colleagues in the majority that the mother’s fear that the child had been sexually abused was “unfounded,” that she made an unnecessary trip to the hospital to have the child checked, that she “repeatedly check[ed]” her child for evidence of rape, including by inserting a Q-tip into her rectum, or that she “repeatedly” failed to comply with medication or other mental health treatment.
. The Family Court apparently sought to justify its consideration of events occurring after the date of filing of the petition by stating at the conclusion of the testimony that “on the court’s own motion, the pleadings are conformed to the proof.” However, by doing so, it deprived the mother of due process, in that she was not provided an opportunity to respond to the amended petition (cf. Family Ct Act § 1051 [b]). Accordingly, I respectfully submit that it is error for the majority to rely on any events after the filing of the petition.
. The majority, citing cases where a parent’s repeated relapses due to failure to comply with treatment resulted in a finding that the child was neglected (Matter of Jacob L. [Chasitiy P.], 121 AD3d 502 [1st Dept 2014]; Matter of Naomi S. [Hadar S.], 87 AD3d 936, 937 [1st Dept 2011], lv denied 18 NY3d 804 [2012]), bases its finding that the mother “repeatedly” failed to comply with her medication regimen on the “totality” of the evidence in the record. However, the only evidence in the record that the mother ever failed to comply with medication prior to the filing of the petition is her admission to St. Barnabas staff and the ACS caseworker that she did not take medication prescribed to her in Texas a few days before, and her admission to the ACS caseworker that she had not taken the medication prescribed at St. Barnabas the day before. These allegations covering a matter of days, even if true, do not amount to a finding that the mother “repeatedly failed and refused to comply with her medication regimen.”
. The majority also notes that the mother returned to St. Barnabas on June 11, 2013 to discuss her medication prescription. However, this does not support a conclusion that the mother failed to follow through with treatment for two reasons. First, this medical record was made nearly a month after the neglect petition was filed, and therefore may not be considered to prove the facts alleged in the petition. Second, the ACS caseworker testified on cross-examination that the mother told her the medication prescribed made her sick, and that the caseworker told the mother to speak to her doctors about this. Accordingly, if the mother returned to the hospital to discuss her medication, she was complying with the caseworker’s recommendation.
. The majority improperly shifts the burden to the mother to prove that her daughter had been raped; rather, it was the obligation of ACS to prove the allegations of the petition that the mother had obtained improper or unnecessary medical care for her daughter (Family Ct Act §§ 1046 [b] [i]; 1051 [a]).
. The majority suggests that, because the mother became concerned that the cotton bud went in further than it had before, the mother must have been using the cotton bud to check for rape on prior occasions. I find no support for this contention, and neither did the Family Court.
. Thus the majority is incorrect in stating that I concede that a parent’s lack of insight into his or her mental illness provides a basis for a finding of neglect; rather, ACS must prove that the parent’s lack of insight affected the parent’s ability to care for the child.
. ACS also cites to Matter of Caress S. ( 250 AD2d 490 [1st Dept 1998]). However, this case predates the Court of Appeals’ opinion in Nicholson v Scoppetta ( 3 NY3d 357 [2004]), which holds that a finding of neglect must be based on both a failure by the parent to provide a minimum degree of care, and resulting harm or imminent risk of harm to the child (see also Matter of Jayvien E., 70 AD3d at 435-436 ). Accordingly, to the extent that Caress S. held that a finding that a parent’s mental illness alone is sufficient for a neglect finding, that case is no longer good law.
. Similarly, in Matter of Naomi S. (Hadar S.) ( 87 AD3d 936 [1st Dept 2011], lv denied 18 NY3d 804 [2012]), cited by the majority, the mother had had multiple extended hospitalizations and repeated relapses of her mental illness, due to her failure to comply with treatment, and there was a finding that release of the child would pose dangers to the child (id. at 937). Moreover, the focus in that case was whether or not services were required for the mother after the father obtained custody of the child (id.).