In a child protective proceeding pursuant to Family Court Act article 10, the father appeals from (1) a decision of the Family Court, Westchester County (Colangelo, J.), dated August 18, 2011, made after a fact-finding hearing, and (2) an order of fact-finding and disposition of the same court, dated November 11, 2011, which, upon the decision, inter alia, found that he neglected the subject child.

Ordered that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,

Ordered that the order of fact-finding and disposition is reversed, on the facts, without costs or disbursements, the petition is denied, and the proceeding is dismissed.

The subject child, Joshua, who was born in February 2006, lived with his father from May 2006 until September 2006, after which time he resided with his mother. Thereafter, pursuant to an order entered upon consent on September 17, 2007, the mother was awarded sole legal and physical custody of Joshua. Subsequently, in August 2008, Joshua was removed from the mother’s care after an adjudication that she had neglected him. At that point, Joshua was placed in the care and custody of the petitioner, Westchester County Department of Social Services (hereinafter the DSS). Fursuant to a second modified permanency hearing order entered September 20, 2010, Joshua was placed with the father, who appeared as a nonparty in a neglect proceeding commenced by the DSS against the mother. Fursuant to that order, the father agreed to, inter alia, cooperate with the DSS’s supervision, which was to include unannounced visits to his residence.

On October 29, 2010, after the father picked Joshua up at daycare, Joshua’s teacher filed a report with the Statewide Central Register of Child Abuse and Maltreatment at ap*894proximately 4:50 p.m., as she was concerned about the father’s behavior when he picked up Joshua that day. In response to Joshua’s teacher’s report, the DSS sent two workers from its Emergency Services Division unannounced to the father’s residence at approximately 9:00 p.m. The father refused to allow the DSS Emergency Services workers into his apartment. Eventually the police forced their way into the apartment, and Joshua was immediately removed from the father’s care. In December 2010, the DSS filed a petition alleging that the father neglected Joshua because, inter alia, he had refused to open the door to his apartment to the DSS Emergency Services workers or the police.

At the fact-finding hearing, the DSS Emergency Services workers testified that, after gaining access to the father’s apartment building either through an open door or by someone letting them in, they proceeded to the father’s apartment and knocked on the door. The father refused to open the door to the DSS Emergency Services workers, explaining that he did not open the door at night and telling them to return the next day. The DSS Emergency Services workers, after speaking to a supervisor, called the police for assistance. When the police knocked on the father’s door, he still refused to open the door, explaining once again that he did not let anyone in whom he did not know. One of the workers called the father on the telephone, and the father stated that he would kill anyone who tried to enter his apartment. The police then left. Approximately two hours later, the DSS Emergency Services workers returned to the father’s residence, where they were met again by the police. At that point, pursuant to a request by the DSS to remove Joshua from the home, the police forced their way into the residence, and arrested the father. The DSS Emergency Services workers found Joshua in the apartment, and he appeared clean, healthy, and safe. On inspection, the DSS Emergency Services workers observed a knife and baseball bat under the father’s bed in the bedroom where the father slept. A small bruise was observed under Joshua’s right eye the next day.

The father testified at the fact-finding hearing that since he had been robbed in the past and because people were always coming in and out of his apartment building, he did not open the apartment door after 9:00 p.m. as a precaution for Joshua’s safety and his own. Further, he explained that, as an additional safety precaution, he kept a baseball bat and a kitchen knife under his bed in the bedroom where only he slept. He also testified that he was concerned that the DSS Emergency Services workers and police officers were impersonating public officials *895as a means to gain entry into his apartment, and that when he called the police department to verify that police officers had been dispatched to his home, he was informed that there was no record of any officers being sent to his address. In addition, he stated that the mark under Joshua’s eye was an injury Joshua had already sustained by the time that he moved in with the father in late September 2010.

After the fact-finding hearing, the Family Court, in a decision dated August 18, 2011, concluded that the father failed to comply with the terms and conditions of Joshua’s placement with him, and described Joshua as a neglected child. The Family Court noted that, pursuant to the second modified permanency hearing order, the father agreed that the DSS would supervise the placement of Joshua with the father, and that the father would cooperate with, inter alia, unannounced visits to his residence. Thus, based on the father’s failure to open the door to the DSS workers, the Family Court concluded that the father “neglected Joshua by neglecting his responsibilities to the entity ultimately charged by statutory directive to keep [Joshua] safe — the [DSS].” Thereafter, the Family Court issued an order of fact-finding and disposition, pursuant to which Joshua was found to be neglected by the father, and directed that Joshua be placed in foster care.

“To establish neglect pursuant to section 1012 (f) (i) (B) of the Family Court Act, the petitioner must prove, by a preponderance of the evidence, that (1) the child’s physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, and (2) the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” (Matter of Kiara C. [David C.], 85 AD3d 1025, 1025-1026 [2011]; see Matter of Michael G.C. [Michael C.], 103 AD3d 890, 891 [2013]; Matter of Arietta S. [Krystal C.], 89 AD3d 1092, 1093 [2011]). Any determination that a child is a neglected child must be based on a preponderance of the evidence (see Family Ct Act § 1046; Matter of Dallas C. [Dusty M.C. — Richard C.], 103 AD3d 631 [2013]; Matter of Kassandra V [Sylvia L.], 90 AD3d 940, 941 [2011]).

Here, while the DSS properly sought access to Joshua under its order of supervision, it failed to prove at the fact-finding hearing by a preponderance of the evidence that the father neglected Joshua (see e.g. Matter of Ariel P. [Lisa W.], 102 AD3d 795, 796 [2013]). The evidence did not establish that Joshua’s physical, mental, or emotional condition was impaired, or was in imminent danger of becoming impaired, as a result of the *896father’s refusal to allow the DSS Emergency Services workers into his apartment. Moreover, the evidence established that the DSS Emergency Services workers found Joshua to be clean, healthy, and safe. Although there was a small bruise under Joshua’s right eye, the Family Court found that the evidence relating to that bruise, discovered the day after Joshua was removed from the father’s apartment, was ambiguous, and the court did not base its finding of neglect on the existence of the bruise. Thus, the only basis for the Family Court’s determination that Joshua was neglected, as explained in its decision, was not established by the DSS by a preponderance of the evidence.

The parties’ remaining contentions either are without merit or need not be addressed in light of our determination. Balkin, J.P., Hall, Austin and Cohen, JJ., concur.

OPINION OF THE COURT

Chief Judge Kaye.

In this federal class action, the United States Court of Appeals for the Second Circuit has certified three questions centered on New York’s statutory scheme for child protective proceedings. The action is brought on behalf of mothers and their children who were separated because the mother had suffered domestic violence, to which the children were exposed, and the children were for that reason deemed neglected by her.

In April 2000, Sharwline Nicholson, on behalf of herself and her two children, brought an action pursuant to 42 USC § 1983 against the New York City Administration for Children’s Services (ACS).1 The action was later consolidated with similar complaints by Sharlene Tillet and Ekaete Udoh—the three named plaintiff mothers. Plaintiffs alleged that ACS, as a matter of policy, removed children from mothers who were victims of domestic violence because, as victims, they “engaged in domestic violence” and that defendants removed and detained children without probable cause and without due process of law. That policy, and its implementation—according to plaintiff mothers—constituted, among other wrongs, an unlawful interference with their liberty interest in the care and custody of their children in violation of the United States Constitution.

In August 2001, the United States District Court for the Eastern District of New York certified two subclasses: battered custodial parents (Subclass A) and their children (Subclass B) (Nicholson v Williams, 205 FRD 92, 95, 100 [ED NY 2001]). For each plaintiff, at least one ground for removal was that the custodial mother had been assaulted by an intimate partner and *366failed to protect the child or children from exposure to that domestic violence.

In January 2002, the District Court granted a preliminary injunction, concluding that the City “may not penalize a mother, not otherwise unfit, who is battered by her partner, by separating her from her children; nor may children be separated from the mother, in effect visiting upon them the sins of their mother’s batterer” (In re Nicholson, 181 F Supp 2d 182, 188 [ED NY 2002]; see also Nicholson v Williams, 203 F Supp 2d 153 [ED NY 2002] [108-page elaboration of grounds for injunction]).

The court found that ACS unnecessarily, routinely charged mothers with neglect and removed their children where the mothers—who had engaged in no violence themselves—had been the victims of domestic violence; that ACS did so without ensuring that the mother had access to the services she needed, without a court order, and without returning these children promptly after being ordered to do so by the court;2 that ACS caseworkers and case managers lacked adequate training about domestic violence, and their practice was to separate mother and child when less harmful alternatives were available; that the agency’s written policies offered contradictory guidance or no guidance at all on these issues; and that none of the reform plans submitted by ACS could reasonably have been expected to resolve the problems within the next year (203 F Supp 2d at 228-229).

The District Court concluded that ACS’s practices and policies violated both the substantive due process rights of mothers and children not to be separated by the government unless the parent is unfit to care for the child, and their procedural due process rights (181 F Supp 2d at 185). The injunction, in relevant part, “prohibited] ACS from carrying out ex parte removals ‘solely because the mother is the victim of domestic violence,’ or from filing an Article Ten petition seeking removal on that *367basis” (Nicholson v Scoppetta, 344 F3d 154, 164 [2d Cir 2003] [internal citations omitted]).3

On appeal, the Second Circuit held that the District Court had not abused its discretion in concluding that ACS’s practice of effecting removals based on a parent’s failure to prevent his or her child from witnessing domestic violence against the parent amounted to a policy or custom of ACS, that in some circumstances the removals may raise serious questions of federal constitutional law, and that the alleged constitutional violations, if any, were at least plausibly attributable to the City (344 F3d at 165-167, 171-176).4 The court hesitated, however, before reaching the constitutional questions, believing that resolution of uncertain issues of New York statutory law would avoid, or significantly modify, the substantial federal constitutional issues presented (id. at 176).

Given the strong preference for avoiding unnecessary constitutional adjudication, the importance of child protection to New York State and the integral part New York courts play in the removal process, the Second Circuit, by three certified questions, chose to put the open state statutory law issues to us for resolution. We accepted certification (1 NY3d 538 [2003]), and now proceed to answer those questions.5

Certified Question No. 1: Neglect

“Does the definition of a ‘neglected child’ under N.Y. Family Ct. Act § 1012(f), (h) include instances in which the sole allegation of neglect is that the parent or other person legally responsible for the child’s care allows the child to witness domestic abuse against the caretaker?” (344 F3d at 176.)

*368We understand this question to ask whether a court reviewing a Family Court Act article 10 petition may find a respondent parent responsible for neglect based on evidence of two facts only: that the parent has been the victim of domestic violence, and that the child has been exposed to that violence. That question must be answered in the negative. Plainly, more is required for a showing of neglect under New York law than the fact that a child was exposed to domestic abuse against the caretaker. Answering the question in the affirmative, moreover, would read an unacceptable presumption into the statute, contrary to its plain language.

Family Court Act § 1012 (f) is explicit in identifying the elements that must be shown to support a finding of neglect. As relevant here, it defines a “neglected child” to mean:

“a child less than eighteen years of age

“(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care . . .

“(B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court.”

Thus, a party seeking to establish neglect must show, by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]), 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 drafters of article 10 were “deeply concerned” that an imprecise definition of child neglect might result in “unwarranted state intervention into private family life” (Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1012, at 320 [1999 ed]).

*369The first statutory element requires proof of actual (or imminent danger of) physical, emotional or mental impairment to the child (see Matter of Nassau County Dept. of Social Servs. [Dante M.J v Denise J., 87 NY2d 73, 78-79 [1995]). This prerequisite to a finding of neglect ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior. “Imminent danger” reflects the Legislature’s judgment that a finding of neglect may be appropriate even when a child has not actually been harmed; “imminent danger of impairment to a child is an independent and separate ground on which a neglect finding may be based” (Dante M., 87 NY2d at 79). Imminent danger, however, must be near or impending, not merely possible.

In each case, additionally, there must be 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. In Dante M., for example, we held that the Family Court erred in concluding that a newborn’s positive toxicology for a controlled substance alone was sufficient to support a finding of neglect because the report, in and of itself, did not prove that the child was impaired or in imminent danger of becoming impaired (87 NY2d at 79). We reasoned, “[r]elying solely on a positive toxicology result for a neglect determination fails to make the necessary causative connection to all the surrounding circumstances that may or may not produce impairment or imminent risk of impairment in the newborn child” (id.). The positive toxicology report, in conjunction with other evidence—such as the mother’s history of inability to care for her children because of her drug use, testimony of relatives that she was high on cocaine during her pregnancy and the mother’s failure to testify at the neglect hearing—supported a finding of neglect and established a link between the report and physical impairment.

The cases at bar concern, in particular, alleged threats to the child’s emotional, or mental, health. The statute specifically defines “[impairment of emotional health” and “impairment of mental or emotional condition” to include

“a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to *370think and reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy” (Family Ct Act § 1012 [h]).

Under New York law, “such impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child” (id.). Here, the Legislature recognized that the source of emotional or mental impairment—unlike physical injury—may be murky, and that it is unjust to fault a parent too readily. The Legislature therefore specified that such impairment be “clearly attributable” to the parent’s failure to exercise the requisite degree of care.

Assuming that actual or imminent danger to the child has been shown, “neglect” also requires proof of the parent’s failure to exercise a minimum degree of care. As the Second Circuit observed, “a fundamental interpretive question is what conduct satisfies the broad, tort-like phrase, ‘a minimum degree of care.’ The Court of Appeals has not yet addressed that question, which would be critical to defining appropriate parental behavior” (344 F3d at 169).

‘‘[M]inimum degree of care” is a “baseline of proper care for children that all parents, regardless of lifestyle or social or economic position, must meet” (Besharov at 326). Notably, the statutory test is “minimum degree of care”—not maximum, not best, not ideal—and the failure must be actual, not threatened (see e.g. Matter of Hofbauer, 47 NY2d 648, 656 [1979] [recognizing, in the context of medical neglect, the court’s role is not as surrogate parent and the inquiry is not posed in absolute terms of whether the parent has made the “right” or “wrong” decision]).

Courts must evaluate parental behavior objectively: would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing (see Matter of Jessica YY., 258 AD2d 743, 744 [3d Dept 1999]). The standard takes into account the special vulnerabilities of the child, even where general physical health is not implicated (see Matter of Sayeh R., 91 NY2d 306, 315, 317 [1997] [mother’s decision to demand immediate return of her traumatized children without regard to their need for counseling and related services “could well be found to represent precisely the kind of failure ‘to exercise a minimum degree of care’ that our neglect statute contemplates”]). Thus, when the inquiry is whether a mother— and domestic violence victim—failed to exercise a minimum *371degree of care, the focus must be on whether she has met the standard of the reasonable and prudent person in similar circumstances.

As the Subclass A members point out, for a battered mother— and ultimately for a court—what course of action constitutes a parent’s exercise of a “minimum degree of care” may include such considerations as: risks attendant to leaving, if the batterer has threatened to kill her if she does; risks attendant to staying and suffering continued abuse; risks attendant to seeking assistance through government channels, potentially increasing the danger to herself and her children; risks attendant to criminal prosecution against the abuser; and risks attendant to relocation.6 Whether a particular mother in these circumstances has actually failed to exercise a minimum degree of care is necessarily dependent on facts such as the severity and frequency of the violence, and the resources and options available to her (see Matter of Melissa U., 148 AD2d 862 [3d Dept 1989]; Matter of James MM. v June OO., 294 AD2d 630 [3d Dept 2002]).

Only when a petitioner demonstrates, by a preponderance of evidence, that both elements of section 1012 (f) are satisfied may a child be deemed neglected under the statute. When “the sole allegation” is that the mother has been abused and the child has witnessed the abuse, such a showing has not been made. This does not mean, however, that a child can never be “neglected” when living in a household plagued by domestic violence. Conceivably, neglect might be found where a record establishes that, for example, the mother acknowledged that the children knew of repeated domestic violence by her paramour and had reason to be afraid of him, yet nonetheless allowed him several times to return to her home, and lacked awareness of any impact of the violence on the children, as in Matter of James MM. (294 AD2d at 632); or where the children were exposed to regular and continuous extremely violent conduct between their parents, several times requiring official intervention, and where caseworkers testified to the fear and distress the children were *372experiencing as a result of their long exposure to the violence (Matter of Theresa CC., 178 AD2d 687 [3d Dept 1991]).

In such circumstances, the battered mother is charged with neglect not because she is a victim of domestic violence or because her children witnessed the abuse, but rather because a preponderance of the evidence establishes that the children were actually or imminently harmed by reason of her failure to exercise even minimal care in providing them with proper oversight.

Certified Question No. 2: Removals

Next, we are called upon to focus on removals by ACS, in answering the question:

“Can the injury or possible injury, if any, that results to a child who has witnessed domestic abuse against a parent or other caretaker constitute ‘danger’ or ‘risk’ to the child’s ‘life or health,’ as those terms are defined in the N.Y. Family Ct. Act §§ 1022, 1024, 1026-1028?” (344 F3d at 176-177.)

The cited Family Court Act sections relate to the removal of a child from home. Thus, in essence, we are asked to decide whether emotional injury from witnessing domestic violence can rise to a level that establishes an “imminent danger” or “risk” to a child’s life or health, so that removal is appropriate either in an emergency or by court order.

While we do not reach the constitutional questions, it is helpful in framing the statutory issues to note the Second Circuit’s outline of the federal constitutional questions relating to removals. Their questions emerge in large measure from the District Court’s findings of an “agency-wide practice of removing children from their mother without evidence of a mother’s neglect and without seeking prior judicial approval” (203 F Supp 2d at 215), and Family Court review of removals that “often fails to provide mothers and children with an effective avenue for timely relief from ACS mistakes” (id. at 221).

Specifically, as to ex parte removals, the Circuit Court identified procedural due process and Fourth Amendment questions focused on whether danger to a child could encompass emotional trauma from witnessing domestic violence against a parent, warranting emergency removal. Discussing the procedural due process question, the court remarked that:

“there is a strong possibility that if New York law *373does not authorize ex parte removals, our opinion in Tenenbaum at least arguably could weigh in favor of finding a procedural due process violation in certain circumstances. If New York law does authorize such removals, Tenenbaum likely does not prohibit us from deferring to that judgment. In either case, the underlying New York procedural rules will also be an important component of our balancing. Thus, the state-law question of statutory interpretation will either render unnecessary, or at least substantially modify, the federal constitutional question” (344 F3d at 172).7

The court also questioned whether “in the context of the seizure of a child by a state protective agency the Fourth Amendment might impose any additional restrictions above and beyond those that apply to ordinary arrests” (id. at 173).

As to court-ordered removals, the Second Circuit recognized challenges based on substantive due process, procedural due process—the antecedent of Certified Question No. 3—and the Fourth Amendment. The substantive due process question concerned whether the City had offered a reasonable justification for the removals. The Second Circuit observed that “there is a substantial Fourth Amendment question presented if New York law does not authorize removals in the circumstances alleged” (id. at 176).

Finally, in certifying the questions to us, the court explained that:

“[t]here is . . . some ambiguity in the statutory language authorizing removals pending a final determination of status. Following an emergency removal, whether ex parte or by court order, the Family Court must return a removed child to the parent’s custody absent ‘an imminent risk’ or ‘im*374minent danger’ to ‘the child’s life or health.’ At the same time, the Family Court must consider the ‘best interests of the child’ in assessing whether continuing removal is necessary to prevent threats to the child’s life or health. Additionally, in order to support removal, the Family Court must ‘find[ ] that removal is necessary to avoid imminent risk.’ How these provisions should be harmonized seems to us to be the province of the Court of Appeals” (344 F3d at 169 [internal citations omitted]).

The Circuit Court summarized the policy challenged by plaintiffs and found by the District Court as “the alleged practice of removals based on a theory that allowing one’s child to witness ongoing domestic violence is a form of neglect, either simply because such conduct is presumptively neglectful or because in individual circumstances it is shown to threaten the "child’s physical or emotional health” (id. at 166 n 5).

It is this policy, viewed in light of the District Court’s factual findings, that informs our analysis of Certified Question No. 2. In so doing, we acknowledge the Legislature’s expressed goal of “placing increased emphasis on preventive services designed to maintain family relationships rather than responding to children and families in trouble only by removing the child from the family” (see Mark G. v Sabol, 93 NY2d 710, .719 [1999] [emphasis omitted] [construing Child Welfare Reform Act of 1979 (L 1979, chs 610, 611)]). We further acknowledge the legislative findings, made pursuant to the Family Protection and Domestic Violence Intervention Act of 1994, that

“[t]he corrosive effect of domestic violence is far reaching. The batterer’s violence injures children both directly and indirectly. Abuse of a parent is detrimental to children whether or not they are physically abused themselves. Children who witness domestic violence are more likely to experience delayed development, feelings of fear, depression and helplessness and are more likely to become batterers themselves” (L 1994, ch 222, § 1; see also People v Wood, 95 NY2d 509, 512 [2000] [though involving a batterer, not a victim]).

These legislative findings represent two fundamental— sometimes conflicting—principles. New York has long embraced a policy of keeping “biological families together” (Matter of Marino S., 100 NY2d 361, 372 [2003]). Yet “when a child’s best *375interests are endangered, such objectives must yield to the State’s paramount concern for the health and safety of the child” (id.).

As we concluded in response to Certified Question No. 1, exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment. A fortiori, exposure of a child to violence is not presumptively ground for removal, and in many instances removal may do more harm to the child than good. Part 2 of article 10 of the Family Court Act sets forth four ways in which a child may be removed from the home in response to an allegation of neglect (or abuse) related to domestic violence: (1) temporary removal with consent; (2) prehminary orders after a petition is filed; (3) preliminary orders before a petition is filed; and (4) emergency removal without a court order. The issue before us is whether emotional harm suffered by a child exposed to domestic violence, where shown, can warrant the trauma of removal under any of these provisions.

The Practice Commentaries state, and we agree, that the sections of part 2 of article 10 create a “continuum of consent and urgency and mandate a hierarchy of required review” before a child is removed from home (see Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1021, at 5 [1999 ed]).

Consent Removal

First, section 1021 provides that a child may be removed “from the place where he is residing with the written consent of his parent or other person legally responsible for his care, if the child is an abused or neglected child under this article” (Family Ct Act § 1021; see Tenenbaum v Williams, 193 F3d 581, 590 n 5 [2d Cir 1999]; Matter of Jonathan P., 283 AD2d 675 [3d Dept 2001]). This section is significant because “many parents are willing and able to understand the need to place the child outside the home and because resort to unnecessary legal coercion can be detrimental to later treatment efforts” (Besharov at 6).

Postpetition Removal

If parental consent cannot be obtained, section 1027, at issue here, provides for preliminary orders after the filing of a neglect (or abuse) petition. Thus, according to the statutory continuum, where the circumstances are not so exigent, the agency should bring a petition and seek a hearing prior to re*376moval of the child. In any case involving abuse—or in any case where the child has already been removed without a court order—the Family Court must hold a hearing as soon as practicable after the filing of a petition, to determine whether the child’s interests require protection pending a final order of disposition (Family Ct Act § 1027 [a]). As is relevant here, the section further provides that in any other circumstance (such as a neglect case), after the petition is filed any person originating the proceeding (or the Law Guardian) may apply for—or the court on its own may order—a hearing to determine whether the child’s interests require protection, pending a final order of disposition (id.).8

For example, in Matter of Adam DD. (112 AD2d 493 [3d Dept 1985]), after filing a child neglect petition, petitioner Washington County Department of Social Services sought an order under section 1027. At a hearing, evidence demonstrated that respondent mother had told her son on several occasions that she intended to kill herself, and Family Court directed that custody be placed with petitioner on a temporary basis for two months. At the subsequent dispositional hearing, a psychiatrist testified that respondent was suffering from a type of paranoid schizophrenia that endangered the well-being of the child, and recommended the continued placement with petitioner. A second psychiatrist concurred. The Appellate Division concluded that the record afforded a basis for Family Court to find neglect because of possible impairment of the child’s emotional health, and continued placement of the child with petitioner.

While not a domestic violence case, Matter of Adam DD. is instructive because it concerns steps taken in the circumstance where a child is emotionally harmed by parental behavior. The parent’s repeated threats of suicide caused emotional harm that could be akin to the experience of a child who witnesses repeated episodes of domestic violence perpetrated against a parent. In this circumstance, the agency did not immediately remove the child, but proceeded with the filing of a petition and a hearing.

Upon such a hearing, if the court finds that removal is necessary to avoid imminent risk to the child’s life or health, it is *377required to remove or continue the removal and remand the child to a place approved by the agency (Family Ct Act § 1027 [b] [i]). In undertaking this inquiry, the statute also requires the court to consider and determine whether continuation in the child’s home would be contrary to the best interests of the child (id.).9

The Circuit Court has asked us to harmonize the “best interests” test with the calculus concerning “imminent risk” and “imminent danger” to “life or health” (344 F3d at 169). In order to justify a finding of imminent risk to life or health, the agency need not prove that the child has suffered actual injury (see Matter of Kimberly H., 242 AD2d 35, 38 [1st Dept 1998]). Rather, the court engages in a fact-intensive inquiry to determine whether the child’s emotional health is at risk. Section 1012 (h), moreover, sets forth specific factors, evidence of which may demonstrate “substantially diminished psychological or intellectual functioning” (see also Matter of Sayeh R., 91 NY2d 306, 314-316 [1997]; Matter of Nassau County Dept. of Social Servs. [Dante M.] v Denise J., 87 NY2d 73, 78-79 [1995]). As noted in our discussion of Certified Question No. 1, section 1012 (h) contains the caveat that impairment of emotional health must be “clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child” (see Matter of Theresa CC., 178 AD2d 687 [3d Dept 1991]).

Importantly, in 1988, the Legislature added the “best interests” requirement to the statute, as well as the requirement that reasonable efforts be made “to prevent or ehminate the need for removal of the child from the home” (L 1988, ch 478, § 5).10 These changes were apparently necessary to comport with federal requirements under title IV-E of the Social Security Act (42 USC §§ 670-679D, which mandated that federal “foster care maintenance payments may be made on behalf of otherwise eligible children who were removed from the home of a specified relative pursuant to a voluntary placement agreement, or as the result of a ‘judicial determination to the effect that continuation therein would be contrary to the welfare of *378the child and . . . that reasonable efforts [to prevent the need for removal] have been made’ ” (Policy Interpretation Question of US Dept of Health & Human Servs, May 3, 1986, Bill Jacket, L 1988, ch 478, at 32-33). The measures “ensure[d] that children involved in the early stages of child protective proceedings and their families receive appropriate services to prevent the children’s removal from their homes whenever possible” (Mem from Cesar A. Perales to Evan A. Davis, Counsel to Governor, July 27, 1988, Bill Jacket, L 1988, ch 478, at 14).

By contrast, the City at the time took the position that

“[t]he mixing of the standards ‘best interest of the child’ and ‘imminent risk’ is confusing. It makes no sense for a court to determine as part of an ‘imminent risk’ decision, what is in the ‘best interest of the child.’ If the child is in ‘imminent risk’, his/her ‘best interest’ is removal from the home. A ‘best interest’ determination is more appropriately made after an investigation and a report have been completed and all the facts are available” (Letter from Legis Rep James Brennan, City of New York Off of Mayor, to Governor Mario M. Cuomo, July 27, 1988, Bill Jacket, L 1988, ch 478, at 23).

In this litigation, the City posits that the “best interests” determination is part of the Family Court’s conclusion that there is imminent risk warranting removal, and concedes that whether a child will be harmed by the removal is a relevant consideration. The City thus recognizes that the questions facing a Family Court judge in the removal context are extraordinarily complex. As the Circuit Court observed, “it could be argued that the exigencies of the moment that threaten the welfare of a child justify removal. On the other hand, a blanket presumption in favor of removal may not fairly capture the nuances of each family situation” (344 F3d at 174).

The plain language of the section and the legislative history supporting it establish that a blanket presumption favoring removal was never intended. The court must do more than identify the existence of a risk of serious harm. Rather, a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests.

*379Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing services to the victim (Family Ct Act § 1027 [b] [iii], [iv]). The Committee Bill Memorandum supporting this legislation explains the intent that “[w]here one parent is abusive but the child may safely reside at home with the other parent, the abuser should be removed. This will spare children the trauma of removal and placement in foster care” (Mem of Children and Families Standing Comm, Bill Jacket, L 1989, ch 727, at 7).

These legislative concerns were met, for example, in Matter of Naomi R. (296 AD2d 503 [2d Dept 2002]), where, following a hearing pursuant to section 1027, Family Court issued a temporary order of protection against a father, excluding him from the home, on the ground that he allegedly sexually abused one of his four children. Evidence established that the father’s return to the home, even under the mother’s supervision, would present an imminent risk to the health and safety of all of the children. Thus, pending a full fact-finding hearing, Family Court took the step of maintaining the integrity of the family unit and instead removed the abuser.

Ex Parte Removal by Court Order

If the agency believes that there is insufficient time to file a petition, the next step on the continuum should not be emergency removal, but ex parte removal by court order (see e.g. Matter of Nassau County Dept. of Social Servs. [Dante M.] v Denise J., 87 NY2d 73 [1995]). Section 1022 of the Family Court Act provides that the court may enter an order directing the temporary removal of a child from home before the filing of a petition if three factors are met.

First, the parent must be absent or, if present, must have been asked and refused to consent to temporary removal of the child and must have been informed of an intent to apply for an order. Second, the child must appear to suffer from abuse or neglect of a parent or other person legally responsible for the child’s care to the extent that immediate removal is necessary to avoid imminent danger to the child’s life or health. Third, there must be insufficient time to file a petition and hold a preliminary hearing.

Just as in a section 1027 inquiry, the court must consider whether continuation in the child’s home would be contrary to the best interests of the child; whether reasonable efforts were *380made prior to the application to prevent or eliminate the need for removal from the home; and whether imminent risk to the child would be eliminated by the issuance of a temporary order of protection directing the removal of the person from the child’s residence.11 Here, the court must engage in a fact-finding inquiry into whether the child is at risk and appears to suffer from neglect.

The Practice Commentaries suggest that section 1022 may be unfamiliar, or seem unnecessary, to those in practice in New York City, “where it is common to take emergency protective action without prior court review” (Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1022, at 10 [1999 ed]). If, as the District Court’s findings suggest, this was done in cases where a court order could be obtained, the practice contravenes the statute. Section 1022 ensures that in most urgent situations, there will be judicial oversight in order to prevent well-meaning but misguided removals that may harm the child more than help. As the comment to the predecessor statute stated, “[t]his section . . . [is] designed to avoid a premature removal of a child from his home by establishing a procedure for an early judicial determination of urgent need” (Committee Comments, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 322 [1963 ed]).

Whether analyzing a removal application under section 1027 or section 1022, or an application for a child’s return under section 1028, a court must engage in a balancing test of the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal. The term “safer course” (see e.g. Matter of Kimberly H., 242 AD2d 35 [1st Dept 1998]; Matter of Tantalyn TT., 115 AD2d 799 [3d Dept 1985]) should not be used to mask a dearth of evidence or as a watered-down, impermissible presumption.

Emergency Removal Without Court Order

Finally, section 1024 provides for emergency removals without a court order. The section permits removal without a court order and without consent of the parent if there is reasonable cause to believe that the child is in such urgent circumstance or condition that continuing in the home or care of the *381parent presents an imminent danger to the child’s life or health, and there is not enough time to apply for an order under section 1022 (Family Ct Act § 1024 [a]; see generally Matter of Joseph DD., 300 AD2d 760, 760 n 1 [3d Dept 2002] [noting that removal under such emergency circumstances requires the filing of an article 10 petition “forthwith” and prompt court review of the nonjudicial decision pursuant to Family Ct Act § 1026 (c) and § 1028]; see also Matter of Karla V., 278 AD2d 159 [1st Dept 2000]). Thus, emergency removal is appropriate where the danger is so immediate, so urgent that the child’s life or safety will be at risk before an ex parte order can be obtained. The standard obviously is a stringent one.

Section 1024 establishes an objective test, whether the child is in such circumstance or condition that remaining in the home presents imminent danger to life or health.12 In construing “imminent danger” under section 1024, it has been held that whether a child is in “imminent danger” is necessarily a fact-intensive determination. “It is not required that the child be injured in the presence of a caseworker nor is it necessary for the alleged abuser to be present at the time the child is taken from the home. It is sufficient if the officials have persuasive evidence of serious ongoing abuse and, based upon the best investigation reasonably possible under the circumstances, have reason to fear imminent recurrence” (Gottlieb v County of Orange, 871 F Supp 625, 628-629 [SD NY 1994], citing Robison v Via, 821 F2d 913, 922 [2d Cir 1987]). The Gottlieb court added that, “[s]inee this evidence is the basis for removal of a child, it should be as reliable and thoroughly examined as possible to avoid unnecessary harm to the family unit” (871 F Supp at 629).

Section 1024 concerns, moreover, only the very grave circumstance of danger to life or health. While we cannot say, for all future time, that the possibility can never exist, in the case of emotional injury—or, even more remotely, the risk of emotional injury—caused by witnessing domestic violence, it must be a rare circumstance in which the time would be so fleeting and *382the danger so great that emergency removal would be warranted.13

Certified Question No. 3: Process

Finally, the Second Circuit asks us:

“Does the fact that the child witnessed such abuse suffice to demonstrate that ‘removal is necessary,’ N.Y Family Ct. Act §§ 1022, 1024, 1027, or that ‘removal was in the child’s best interests,’ N.Y. Family Ct. Act §§ 1028, 1052(b)(i)(A), or must the child protective agency offer additional, particularized evidence to justify removal?” (344 F3d at 177.)

The Circuit Court has before it the procedural due process question whether, if New York law permits a presumption that removal is appropriate based on the witnessing of domestic violence, that presumption would comport with Stanley v Illinois (405 US 645 [1972] [recognizing a father’s procedural due process interest in an individualized determination of fitness]). All parties maintain, however, and we concur, that under the Family Court Act, there can be no “blanket presumption” favoring removal when a child witnesses domestic violence, and that each case is fact-specific. As demonstrated in our discussion of Certified Question No. 2, when a court orders removal, particularized evidence must exist to justify that determination, including, where appropriate, evidence of efforts made to prevent or eliminate the need for removal and the impact of removal on the child.

The Circuit Court points to two cases in which removals occurred based on domestic violence without corresponding expert testimony on the appropriateness of removal in the particular circumstance (Matter of Carlos M., 293 AD2d 617 [2d Dept 2002]; Matter of Lonell J., 242 AD2d 58 [1st Dept 1998]). Both cases were reviewed on the issue whether there was sufficient evidence to support a finding of neglect. In Carlos M., the evidence showed a 12-year history of domestic violence between the parents which was not only witnessed by the children but also often actually spurred their intervention. In Lonell J., *383caseworkers testified at a fact-finding hearing about the domestic violence perpetrated by the children’s father against their mother, as well as the unsanitary condition of the home and the children’s poor health.

We do not read Carlos M. or Lonell J. as supportive of a presumption that if a child has witnessed domestic violence, the child has been harmed and removal is appropriate. That presumption would be impermissible. In each case, multiple factors formed the basis for intervention and determinations of neglect. As the First Department concluded in Lonell J., moreover, “nothing in section 1012 itself requires expert testimony, as opposed to other convincing evidence of neglect” (242 AD2d at 61). Indeed, under section 1046 (a) (viii), which sets forth the evidentiary standards for abuse and neglect hearings, competent expert testimony on a child’s emotional condition may be heard. The Lonell J. court expressed concern that while older children can communicate with a psychological expert about the effects of domestic violence on their emotional state, much younger children often cannot (242 AD2d at 62). The court believed that “[t]o require expert testimony of this type in the latter situation would be tantamount to refusing to protect the most vulnerable and impressionable children. While violence between parents adversely affects all children, younger children in particular are most likely to suffer from psychosomatic illnesses and arrested development” (id.).

Granted, in some cases, it may be difficult for an agency to show, absent expert testimony, that there is imminent risk to a child’s emotional state, and that any impairment of emotional health is “clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child” (Family Ct Act § 1012 [h]). Yet nothing in the plain language of article 10 requires such testimony. The tragic reality is, as the facts of Lonell J. show, that emotional injury may be only one of the harms attributable to the chaos of domestic violence.

Accordingly, the certified questions should be answered in accordance with this opinion.

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.17 of the Rules of *384Practice of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein.

OPINION OF THE COURT

Simons, J.

This is an appeal from an order terminating respondent’s parental rights to her child, Star Leslie W., because of permanent neglect (Social Services Law, § 384-b, subd 4, par [d]; subd 7). To support that order the statute requires proof before Family Court that respondent failed to maintain contact with or plan for the future of her child for a period of one year after the child came into the custody of an authorized agency notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship. Respondent contends that petitioner failed to establish neglect under the statute by clear and convincing evidence (see Santosky v Kramer, 455 US 745; Matter of Michael B., 58 NY2d 71) but more particularly she claims that the order should be reversed because the child was not in the custody of an authorized agency at the time the petition was filed and because the petition was not filed until several months after the one-year period of neglect found by the court. Family Court granted the petition and the Appellate Division affirmed by a divided court. We now affirm its order.

Respondent, a foster child herself, lived with her foster family from 1965 until 1977. She was 18 years old when she left.. On July 19, 1979 she gave birth to Star Leslie W. After attempting unsuccessfully to care for the baby for a week she took Star to the home of her former foster mother and left her there. Respondent’s foster parents were subsequently placed on foster parent status for Star in August so they could be paid, respondent signing a voluntary commitment of the child to the Commissioner of Social Services for that purpose. He subsequently transferred care to *141Leake & Watts Children’s Home which in turn transferred her to the foster parents. Star resided with them continuously until July, 1982, except for a period of one month in December-January, 1981-1982 when she lived with respondent. In July, 1982, after the foster mother became ill and was no longer able to care for Star, petitioner placed her in a preadoptive home. During the time the foster parents had Star, respondent was given unlimited visitation rights. She saw her child six times in 1979 and six times in 1980. The visits were either at the foster home or arranged by petitioner at. its clinic during examinations of the child. To the knowledge of petitioner, respondent did not see the child between October, 1980 and June, 1981.

During 1979 and 1980 respondent changed residences several times leaving her own apartment to live variously with her boyfriend, Robert, and her sister in The Bronx and then moving to Yonkers to live with another sister before returning to Robert. She was frequently out of contact with the petitioner for extended periods of time, moving without leaving a forwarding address and failing to notify it of the changes. Petitioner’s social worker testified that she could not locate respondent for a period of four months after April, 1980 and that respondent moved to Yonkers in October, 1980 and did not reappear until June, 1981. The social worker talked with respondent in November, 1980 and learned of her move to Yonkers but respondent would not tell the social worker how to contact her there.

In February, 1981 when petitioner could not locate respondent, it instituted a proceeding to terminate her parental rights based upon a one-year period of permanent neglect. Respondent apparently learned of this through her foster mother and appeared at the intake hearing in June, 1981. At respondent’s urging, the petition was withdrawn in October, 1981 and plans were made to deliver Star to her temporarily at her boyfriend’s apartment, where she was then living. On December 17, 1981, the transfer was completed but it ended on January 13, 1982 when respondent left the apartment and returned with the baby to her foster mother. Although respondent contended at trial that she left because there was no heat in the apartment, Family *142Court accepted contrary evidence and found that she left because her boyfriend had thrown her out of the apartment after a violent fight which necessitated a call to the police. Two days later respondent returned to the apartment with her foster parents to recover her clothes. She went upstairs and, during the two hours they waited, failed to come down. Star remained in the foster home, and respondent visited her there five times between January and July, 1982. Star is now five years of age. During her life she has resided with respondent only one week after her birth and for the period from December 17, 1981 until January 13, 1982.

In February, 1982 petitioner instituted this proceeding. The natural father was served by publication and failed to appear.

I

We have recently stated our strong determination that before terminating a parent’s rights the State must first attempt to reunite the parent with her child. Thus, the threshold inquiry by the court in any neglect proceeding must be whether the agency exercised diligent efforts to strengthen the parental relationship (Matter of Sheila G., 61 NY2d 368). Those efforts must include counseling, making suitable arrangements for visitation, providing assistance to the parents to resolve or ameliorate the problems preventing discharge of the child to their care and advising the parent at appropriate intervals of the child’s progress and development (Social Services Law, § 384-b, subd 7, par [f]; Matter of Sheila G., supra, at pp 384-386; Matter of Star A., 55 NY2d 560). These measures are not exclusive. The agency is free to attempt other reasonable and practical 'means to encourage and strengthen the family relationship.

Additionally, neglect may be found only after it is established that the parent has failed substantially and continuously or repeatedly to maintain contact with or plan for the future of the child although physically and financially able to do so (Social Services Law, § 384-b, subd 7, par [a]). The requirement is several: the parent must maintain contact with the child and also realistically plan for her future. A *143default in performing either may support a finding of permanent neglect (Matter of Orlando F., 40 NY2d 103, 110; Matter of Candie Lee W, 91 AD2d 1106; Matter of John AA., 89 AD2d 738). Insubstantial or infrequent contacts with the child are insufficient (Social Services Law, § 384-b, subd 7, par [b]) and the planning requirement contemplates that the parent shall take such steps as are necessary to provide a home that is adequate and stable, under the financial circumstances existing, within a reasonable period of time. Good faith alone is not enough: the plan must be realistic and feasible (Social Services Law, § 384-b, subd 7, par [c]).

After a fact-finding hearing, Family Court found that respondent had maintained contact with Star, notwithstanding respondent’s absences for extended periods. It found, however, that respondent had failed to plan for her child’s future, despite the agency’s diligent efforts, and it therefore granted the petition and permanently terminated respondent’s parental rights. After a dispositional hearing, it transferred custody to petitioner and the Commissioner of Social Services for adoption. At the Appellate Division, all the Judges agreed that respondent had failed to plan for the child. Two Judges dissented because they believed that petitioner had not made diligent efforts to reunite respondent with her child. Justice Asch also found procedural irregularities which in his judgment required reversal.

The evidence in the record supports Family Court’s finding of diligent efforts to assist respondent. At the time of the birth respondent lived in a small apartment by herself. Petitioner had no objection to the accommodations but respondent did not want to care for the baby there so petitioner’s social worker referred her to the Home’s housing office. Respondent went to the housing office where she was given referrals to investigate but she failed to follow through on them. Although it was clear that housing was respondent’s main problem, she failed to take any concrete steps to solve it. Apparently her only plan to establish a home for Star was to marry her boyfriend. In the meantime, she moved frequently, staying with him intermittently after 1979, and leaving twice for extended periods of time during which she failed to notify the agency of her *144change of address or how she could be reached. Nevertheless, petitioner’s staff counseled her as they could and it continued foster care in respondent’s own former foster home, a familiar setting, and encouraged her to visit often and participate in the child’s upbringing. It arranged for clinic visits for the child and informed the mother of them so she could be present to visit and check the baby’s progress.

Notwithstanding petitioner’s lack of success and its inability to maintain regular contact with respondent because of her moves, the agency agreed to withdraw the 1981 petition after she returned that summer and made renewed efforts to reunite mother and child by encouraging future visitation and by arranging for a trial period when the child would live with respondent and her boyfriend. It was planned that respondent would obtain public assistance for the child, find day care help and return to school. Hopefully she and her boyfriend would marry. After several visits to the apartment with Star to acquaint her with her mother and the surroundings, Star was transferred to respondent on December 17. The agency supervised the trial arrangement, visiting the apartment periodically, helping with the adjustment of the assistance budget and attempting to arrange day care for the child so that respondent could continue her schooling. It was only after this trial effort had failed, respondent had returned the baby to her foster parents and had failed to return to care for her that petitioner ceased its efforts and started this proceeding. It was not required to do more. The statute requires only reasonable efforts and this record is devoid of any commitment by respondent to plan for herself and her baby or to follow through on suggestions and efforts made by petitioner’s staff (see Matter of Orlando F., 40 NY2d 103, supra; Matter of Candle Lee W, 91 AD2d 1106, supra; Matter of John AA., 89 AD2d 738, supra). An agency which has tried diligently to reunite a mother with her child but which is confronted by an uncooperative or indifferent parent is deemed to have fulfilled its duty* (see Matter of Sheila G., 61 NY2d 368, 385, supra).

*145Respondent contends further that the order may not stand because petitioner did not establish that the child was in the care of an authorized agency at the time the proceeding was commenced, as the statute requires (Social Services Law, § 384-b, subd 7, par [a]). She maintains that the agency is unable to prove either its right to care for the child or that neglect continued for one year after it legally received her. The argument is premised on two alternative grounds, first that the commitment document is not to be found in the record and second, that custody, even if lawfully acquired in 1979, was terminated by the delivery of Star to respondent December 17, 1981 and no new commitment was acquired after her return to the foster parents.

We find no merit to either contention. The petition identified the commitment and alleged that respondent had executed it on August 27, 1979, petitioner’s social worker testified to the execution without objection, and respondent’s counsel did not challenge the sufficiency of the evidence on this ground at the hearing. Having failed to raise the issue at that time, she may not do so now (see, generally, Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 162).

Nor was the custody of petitioner terminated by the delivery of the child t'o respondent in December, 1981. The transfer of care was temporary and made on a trial basis. Respondent does not contend otherwise. Indeed she testified that she understood that she was on “probation” when she received Star. On this appeal she urges only that there is no authority for such a trial transfer of a child to her mother. The statute, however, mandates diligent efforts, defining them as “reasonable attempts * * * to assist, develop and encourage a meaningful relationship between the parent and child” (Social Services Law, § 384-b, subd 7, par [f]). Four types of efforts are enumerated in the statute and petitioner engaged in each of them trying to strengthen respondent’s relationship with her child. For over two years it was unsuccessful. The statute also provides, however, that those specified measures are not exclusive, and there is no reason why, when it became *146apparent that respondent intended to remain with her boyfriend, and considering her obvious, if sporadic, interest in her child, petitioner could not reasonably assume “diligent efforts” permitted it to try this further alternative in an attempt to reunite the family. Such arrangements, carefully and deliberately made and agreed to, are well within an agency’s implied powers under the statute. Indeed, only a cynical interpretation of the law would attach to such good-faith efforts the peril of frustrating further termination proceedings if the experiment failed and neglect was apparent. Nor did the agency violate respondent’s rights when, as she claims in a related argument, it refused her oral request to return the child after she left her with her foster parents in January, 1982. The statute provides that the parent’s notice to the agency to return the child must be written (Social Services Law, § 384-a, subd 2, par [a]).

Finally, respondent objects to the determination at the fact-finding hearing because Family Court and the Appellate Division found neglect for the period January, 1980 to June, 1981, a period ending several months before this proceeding was instituted in February, 1982. Her contention is that the period of neglect must be the one-year period prior to the institution of proceedings. The short answer to that contention is that the Legislature has provided for termination if the parent is chargeable with conduct constituting neglect for a period of “one year following the date such child came into the care of an authorized agency” (Social Services Law, § 384-b, subd 7, par [a]). The statute contemplates a continuous period of one year at any time after the child’s placement (see Matter of Norma Jean K., 81 AD2d 919; Matter of Melanie Ruth JJ, 76 AD2d 1008; Matter of Jones, 59 Misc 2d 69; Gordon, Terminal Placements of Children and Permanent Termination of Parental Rights: The New York Permanent Neglect Statute, 46 St John’s L Rev 215, 233-234). That construction is consistent with the common-law rule of abandonment, which has been held to provide that a parent has no right to block the adoption of a child she has abandoned, notwithstanding a later change of heart (see People ex rel. Pickle v Pickle, 215 App Div 38, 44; Matter of *147Jones, 59 Misc 2d 69, supra). The permanent neglect statute was intended to supplement this rule (see NY Legis Ann, 1959, p 415). Moreover, the construction adopted is reasonable because delay beyond the one-year period of neglect may be required to permit careful consideration by the agency staff of the decision to terminate parental rights, or it may be deemed advisable by the agency to allow a further effort at reuniting the family. Whether the delay is justified or not, however, the agency should not be held strictly to a period either one year immediately following commitment to its care or one year immediately preceding the petition to establish neglect. It may not delay institution of proceedings indefinitely, but the delay occurred in this case because of petitioner’s effort to reunite the family after the one-year period and that conduct does not require reversal of the findings of permanent neglect.

That is not to say that the conduct of the parent after the one-year period of neglect should not be considered. At the fact-finding hearing the court is obliged to consider her conduct and commitment toward her child during the interim, if that conduct has substantially changed, as well as the efforts of the agency. An awareness of that judicial obligation, or at least a hope that respondent would improve, apparently motivated petitioner to withdraw the 1981 petition in this case and attempt a trial period of care to give respondent a second chance. That these efforts failed is not to be held against it here when the evidence in the record supports the finding of a continuous period of neglect exceeding one year, unredeemed by sufficient conduct by respondent giving the agency or the court confidence of future success in reuniting the family.

II

Respondent also challenges the direction made by the court at the conclusion of the dispositional hearing.

Unlike a fact-finding hearing which resolves the issue of permanent neglect and in which the best interests of the child play no part in the court’s determination, the court in the dispositional hearing must be concerned only with the best interests of the child. There is no presumption that those interests will be served best by return to the *148parent (Family Ct Act, §§ 623, 631). At the time of the dispositional hearing, respondent had married Robert and was expecting another child. Both husband and wife had been employed irregularly and were supporting themselves principally by public assistance. Petitioner produced two witnesses, an experienced caseworker who had worked with Star since birth and with respondent for several years when she was in foster care, and a psychiatrist who offered her professional opinion after examining respondent and the agency’s records. The reports of petitioner and the psychiatrist were also received. Psychological tests and psychiatric evaluation showed respondent suffered from chronic mental illness and was of borderline intelligence. Both petitioner’s witnesses concluded that based upon respondent’s past performance and her mental capacity, she was unable to accept the responsibility to care for Star, particularly with a second child due. Conversely, the evidence established that the preadoptive parents were happily married, both were steadily employed, and were the successful adoptive parents of a seven-year-old boy placed with them by petitioner four years earlier. Star had lived with her preadoptive family for six months at the time of the dispositional hearing, was well adjusted to them and doing well in school. This evidence supports the court’s factual finding that Star’s best interests required permanent termination of respondent’s rights and the transfer of custody and guardianship to petitioner and the Commissioner of Social Services to make her available for adoption.

Finally, we find no merit to respondent’s contention that the court improperly accepted written reports of petitioner’s witnesses in evidence at the dispositional hearing (see Matter of Leon RR, 48 NY2d 117). The only objection registered was to the psychiatrist’s addendum report delivered to respondent’s counsel a few hours before the psychiatrist testified. The original report had been prepared several weeks earlier and submitted to counsel for his examination then. It indicated that an addendum was forthcoming and the addendum report, when completed, contained no surprising changes in findings or diagnosis from the original. Counsel’s only objection at trial was that *149in view of the addendum he wished his own psychiatric evaluation of respondent. The court did not abuse its discretion as a matter of law in denying the application.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye concur.

Order affirmed, with costs.

—In a proceeding to terminate parental rights pursuant to Social Services Law § 384-b, the father appeals, as limited by his brief, from so much of an order of the Family Court, Kings County (Greenbaum, J.), dated October 27, 1998, as, after a fact-finding hearing, terminated his parental rights to the child Jasmin T. on the ground of abandonment.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The Family Court properly determined that there was clear and convincing proof of the father’s abandonment of Jasmin T. during the six-month period prior to the filing of the petition (see, Social Services Law § 384-b [5] [b]; Matter of I.R., 153 AD2d 559, 560; Matter of Rose Marie M., 94 AD2d 734). The father failed to show a good reason for his failure to contact or communicate with his daughter (see, Matter of Charmaine T., 173 AD2d 625, 626-627). Neither the order of protection, the father’s drug use, nor his incarceration prevented him from contacting his child or the agency by telephone or by letter (see, Matter of Anthony M., 195 AD2d 315; Matter of Dawntal Danielle C., 170 AD2d 375; Matter of Thomas G., 165 AD2d 729; Matter of I.R., supra; Matter of Ulysses T., 87 AD2d 998, affd 66 NY2d 773). Ritter, J. P., S. Miller, Friedmann and Crane, JJ., concur.