Nassau County Dept. of Social Services on Behalf of Dante M. v. Denise J.
| Decision Date | 30 November 1995 |
| Docket Number | No. 2,No. 1,1,2 |
| Citation | 87 N.Y.2d 73,637 N.Y.S.2d 666,661 N.E.2d 138 |
| Parties | , 661 N.E.2d 138 In the Matter of NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of DANTE M., Respondent, v. DENISE J., Appellant. (Proceeding) In the Matter of NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of DANTIA M., Respondent, v. DENISE J., Appellant. (Proceeding) |
| Court | New York Court of Appeals Court of Appeals |
The issue before this Court is whether a finding of neglect as to a newborn and the newborn's older sibling may be based solely on the newborn's positive toxicology for a controlled substance. We conclude that more than a positive toxicology is generally required for a neglect determination. We affirm in this case because, as the Appellate Division concluded, there is additional evidence in the record supporting the Family Court's findings of neglect.
Appellant gave birth to her son Dante in November 1990. Both mother and son tested positive for cocaine. After learning of the positive toxicologies, the Nassau County Department of Social Services (DSS) brought a petition pursuant to section 1022 of the Family Court Act to temporarily remove Dante from appellant's care. Family Court conducted a hearing on the removal petition on November 21, 1990.
At the hearing, DSS presented evidence that Dante was born with a positive toxicology for cocaine and a low birth weight. DSS also presented evidence that appellant had a history of cocaine abuse, had been admitted to several drug rehabilitation centers, and that appellant's mother had custody of two of appellant's children because appellant's drug use rendered her incapable of caring for them. Appellant's mother informed DSS that she had observed appellant high on cocaine in the last weeks of appellant's pregnancy with Dante. Appellant told DSS that she smoked a cigarette at a Halloween party at the end of her pregnancy which may have contained cocaine.
Appellant did not present any witnesses at the removal hearing, but argued that DSS had failed to sustain its burden of proof because no toxicology report or witnesses to recent drug abuse had been produced. Appellant's counsel also argued that appellant had not admitted to recent, intentional, drug use. Family Court dismissed the petition and directed the hospital to release Dante to appellant's custody. That removal proceeding is not before us.
DSS subsequently brought this consolidated child protective proceeding against appellant on behalf of Dante, appellant's son, and Dantia (born in 1987), appellant's daughter. At the fact-finding hearing, DSS introduced into evidence two medical reports showing a positive toxicology for cocaine from Dante and positive toxicology for cocaine and opiates from appellant. DSS also presented evidence of appellant's prior history of drug abuse and appellant's admission that she may have smoked a cigarette containing cocaine, while she was pregnant with Dante, at a Halloween party.
Appellant presented two experts who testified that appellant provided a clean, well-ordered environment for her children, that appellant interacted appropriately with her children and that four random urine samples taken from appellant tested negative for controlled substances. The experts opined that appellant had not been a regular user of controlled substances since the latter half of the 1980's. The experts also testified that appellant was voluntarily receiving counseling at a general education and support program run by the Family Service Association. Appellant did not testify at the fact-finding hearing.
Dante's medical records reveal a primary diagnosis of prematurity, even though they also indicate 38-39 weeks of gestation, with a low birth weight (4 pounds, 14 ounces) for his gestation period. Dante remained in the Neonatal Intensive Care Unit for the duration of his stay at the Nassau County Medical Center. He was released to the custody of his mother on November 21, 1990, after the Family Court refused to order removal.
The medical records also contain a note from the medical center's social worker documenting a phone call from appellant's aunt at the beginning of November, before Dante's birth, alerting the social worker to appellant's drug use and expressing concern about Dante's health. The records further contain a discharge assessment form indicating a discharge diagnosis of prematurity and advising follow-up care in the high-risk clinic. *
Family Court found that Dante's positive toxicology for cocaine constituted sufficient evidence for a finding of neglect as to Dante and Dantia. The Family Court further found that a presentment agency need not produce any evidence for a finding of neglect other than a positive toxicology for a controlled substance in the newborn. Appellant was permitted to retain custody of Dante and Dantia and placed under the supervision of DSS for a one-year period. The Appellate Division affirmed, relying on additional evidence in the record for its factual findings of neglect.
Section 1012(f)(i)(B) of the Family Court Act defines a "neglected child" as a child less than 18 years of age "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 "by misusing a drug or drugs." Thus, the statute sets forth two predicates for a finding of...
To continue reading
Request your trial
-
William N. v. Kimberly H.
...365, 950 N.E.2d 101. In a case of particular relevance to the present one, the Court of Appeals held in In the Matter of Dante M., 87 N.Y.2d 73, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995], that a newborn's positivetoxicology for cocaine “without proof that the child has been physically, mental......
-
In re Naomi P.
...Philip De G., 59 N.Y.2d 137, 141, 463 N.Y.S.2d 761, 450 N.E.2d 681 [1983] ; Matter of Nassau County Department of Social Services [Dante M.] v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ; Matter of Clarissa S.P., 91 A.D.3d 785, 786, 939 N.Y.S.2d 466 [2012] ; Matte......
-
Landon v. Kroll Lab. Specialists, Inc.
...N.Y.S.2d 356), or contribute to the complete termination of parental rights ( see e.g. Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79–80, 637 N.Y.S.2d 666, 661 N.E.2d 138; Matter of Angelica G. [ Frank G.], 74 A.D.3d 470, 470, 901 N.Y.S.2d 833; Matter of Maran......
-
In the Matter of The Application of Jaime Gongora v. N.Y. City Dep't of Educ.
...proceedings. Miller v. DeBuono, 90 N.Y.2d at 793, 666 N.Y.S.2d 548, 689 N.E.2d 518. See Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 (1995); Matter of Nicole H., 12 A.D.3d 182, 183, 783 N.Y.S.2d 575 (1st Dep't 2004). Finally, under ei......
-
CONFRONTING INDETERMINACY AND BIAS IN CHILD PROTECTION LAW.
...prove neglect and instead must be coupled with proof that a parent's drug use placed children at risk of imminent harm. In re Dante M., 661 N.E.2d 138, 140-41 (N.Y. 1995). Case law has also clarified mere exposure of a child to domestic violence directed against a parent does not constitute......