In re Kasiana UU., 519075

Decision Date04 June 2015
Docket Number519075
Citation10 N.Y.S.3d 708,2015 N.Y. Slip Op. 04697,129 A.D.3d 1150
PartiesIn the Matter of KASIANA UU., and Others, Alleged to be Neglected Children. Broome County Department of Social Services, Respondent; Ricki TT., Appellant.
CourtNew York Supreme Court — Appellate Division

Christopher A. Pogson, Binghamton, for appellant.

Kuredin Eytina, Broome County Department of Social Services, Binghamton, for respondent.

Thomas Cline, Binghamton, attorney for the children.

Before: McCARTHY, J.P., LYNCH, DEVINE and CLARK, JJ.

Opinion

LYNCH, J.

Appeal from an order of the Family Court of Broome County (Pines, J.), entered May 6, 2014, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate respondent's children to be neglected.

Respondent is the mother of four children (born in 2001, 2004, 2005 and 2008). The record reflects that the children were removed from respondent's care and placed in foster care in June 2013, when petitioner commenced neglect proceedings against respondent and the children's father. In October 2013, after a fact-finding hearing on the June 2013 neglect petition, the parties stipulated to an order dismissing the proceeding against respondent, adjourning the proceeding in contemplation of dismissal against the children's father (see Family Ct. Act § 1039 ) and placing all four children in petitioner's custody. In November 2013, petitioner commenced this neglect proceeding against respondent. After an April 2014 fact-finding hearing, Family Court issued an order determining that the children were neglected based upon respondent's drug use and failure to seek and obtain substance abuse treatment. Respondent now appeals and we affirm.

Initially, we reject respondent's claim that the evidence was not sufficient to support a finding of neglect because the children were in petitioner's custody. A neglected child is one “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” because of a parent's failure “to exercise a minimum degree of care ... in providing the child with proper supervision or guardianship ... or by misusing a drug or drugs” (Family Ct. Act § 1012[f][i] [B] ). In a fact-finding hearing pursuant to Family Ct. Act § 1044, “proof that a person repeatedly misuses a drug or drugs ... shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child” (Family Ct. Act § 1046[iii] ; see Matter of Amber DD., 26 A.D.3d 689, 690, 809 N.Y.S.2d 657 [2006] ). This presumption “operates to eliminate a requirement of specific parental conduct vis-à-vis the child and neither actual impairment nor specific risk of impairment need be established” (Matter of Paolo W., 56 A.D.3d 966, 967, 867 N.Y.S.2d 753 [2008], lv. dismissed 12 N.Y.3d 747, 876 N.Y.S.2d 698, 904 N.E.2d 834 [2009] [internal quotation marks and citation omitted]; see Matter of Chassidy CC. [Andrew CC.], 84 A.D.3d 1448, 1449, 922 N.Y.S.2d 620 [2011] ). Contrary to respondent's argument, a neglect finding may be warranted even where, as here, the children had been removed from her custody and placed with petitioner prior to the instances of drug use underlying the neglect petition. As a parent, respondent had a continuing obligation to affirmatively address her ongoing misuse of drugs (see Matter of Jessica FF., 211 A.D.2d 948, 950, 621 N.Y.S.2d 722 [1995] ).

Here, Family Court took judicial notice of two prior neglect proceedings, one of which involved respondent's drug use. The court also heard testimony from two caseworkers. One testified that respondent admitted to her that respondent used cocaine after a scheduled July 2013 drug test was positive for cocaine and oxycodone.1 The second...

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5 cases
  • In re Jonathan E.
    • United States
    • New York Supreme Court — Appellate Division
    • 6 April 2017
    ... ... of a neglect petition may properly form the basis of a finding of neglect (see Matter of Kasiana UU. [Ricki TT.], 129 A.D.3d 1150, 1151, 10 N.Y.S.3d 708 [2015] ; Matter of Jessica FF., 211 A.D.2d ... ...
  • Layton v. Grace
    • United States
    • New York Supreme Court — Appellate Division
    • 4 June 2015
  • In re Marcus JJ.
    • United States
    • New York Supreme Court — Appellate Division
    • 7 January 2016
    ... ... Act 1012[h] ; Matter of Kasiana UU. [Ricki TT.], 129 A.D.3d 1150, 11511152, 10 N.Y.S.3d 708 [2015] ; Matter of Lamarcus E ... ...
  • In re Chrystal W.
    • United States
    • New York Supreme Court — Appellate Division
    • 10 February 2016
    ... ... such person is a neglected child" (Family Ct. Act 1046[a][iii] ; see Matter of Kasiana UU. [Ricki TT.], 129 A.D.3d 1150, 1151, 10 N.Y.S.3d 708 ; Matter of Madison PP. [Tina QQ.], 88 ... ...
  • Request a trial to view additional results

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