William N. v. Kimberly H.

Citation968 N.Y.S.2d 357,2013 N.Y. Slip Op. 23181,40 Misc.3d 602
PartiesIn the Matter of A Neglect Proceeding Under Article 10 of the Family Court Act WILLIAM N., JR., A Child Under the age of 18, Alleged to be Neglected by v. Kimberly H., William N., Sr.
Decision Date31 May 2013
CourtNew York Family Court

OPINION TEXT STARTS HERE

Corporation Counsel, Michael Cordozo, by Special Assistant Corporation Counsel, Janet Gottlieb, Esq., for Petitioner.

Charles Budnick, Esq., Brooklyn Defender Services, for Respondent Mother.

Joel M. Kahn, Esq., for Respondent Father.

Steven Cary Bernstein, Esq., for the Child.

ANN E. O'SHEA, J.

The Commissioner of the Administration for Children's Services (“ACS”) commenced this proceeding alleging that subject child, William N., Jr., (DOB March 2, 2011)(“the Child” or “William”) was neglected by his mother, Kimberly H. (the Mother), and his father, William N., Sr. (the Father) (collectively “the Respondents). Specifically, ACS alleges that the Child's “physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired” as a result of the Mother's and Father's use of marijuana while the Mother was pregnant; the Father's “failure to take any action” to stop the Mother from smoking marijuana; and the Mother's failure to comply with a dispositional order entered, less than three months before William was born, in a case involving William's then 4 1/2–year–old sibling Akasha. William was removed from the Respondents' care two days after his birth, remanded to the custody of the Commissioner, and temporarily placed with his maternal aunt pending further proceedings.

A fact-finding hearing commenced on February 14, 2012, and was continued on March 28, 2012, and October 10, 2012. At the conclusion of ACS's evidence, Respondents moved pursuant to CPLR 4401 to dismiss the petition on the grounds that ACS had failed to establish a prima facie case of neglect against them. After submission of briefs, the Court denied the motions and continued the hearing.

The Evidence

Petitioner's evidence consisted of records from Beth Israel Hospital (“the Hospital”) where William was born and the testimony of Child Protective Specialist Leah Brown. In addition, the Court took judicial notice of the fact-finding and dispositional orders in Akasha's case. The Mother testified on her own behalf. The Father presented no evidence.

The Mother's and Father's Use of Marijuana

The Hospital records established that the Mother tested positive for marijuana when William was born, but William tested negative. Ms. Brown testified that the Mother admitted smoking marijuana during her pregnancy. The Mother admitted in the hearing that she smoked marijuana when she was seven months pregnant with William—around the same time that she consented to entry of a finding that she neglected Akasha by misusing marijuana. The Mother explained that she smoked marijuana while she was pregnant with William because it was a difficult pregnancy, she was unable to eat, and the marijuana helped increase her appetite and her tolerance of food. Regardless, she did smoke marijuana while she was pregnant with William.

The Hospital records also established that, although the Mother tested positive for marijuana when William was born, William tested negative for alcohol, marijuana, or any other controlled substance. Except for a slightly elevated bilirubin count, which had no connection to the Mother's marijuana use, William was a healthy, normal newborn in all respects.

Family Court Act § 1012(f) defines a “neglected child” in pertinent part as a child under the age of 18 (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 ... to exercise a minimum degree of care ... (B) in providing the child with proper supervision or guardianship by ... misusing a drug or drugs....” 1 To establish that William was a neglected child, Petitioner had to prove, by a preponderance of the evidence ( FCA § 1046(b)(i); Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ), not only that the Mother misused a drug or drugs, which is not in dispute, but also that William's physical, mental or emotional condition was impaired or placed in imminent danger of becoming impaired as a result of the Mother's drug use ( id.)

The Court of Appeals instructed in Nicholson that, in determining whether a child should be removed from her home, a court must “focus on serious or potential harm to a child, not just what might be deemed undesirable parental behavior” (3 N.Y.3d at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840). Moreover, the Court emphasized that “imminent danger” means “near or impending, not merely possible” ( id.).

The Court of Appeals reiterated Nicholson's teaching in Matter of Afton C., 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 [2011]. In that case, the Court held that the RespondentFather's conviction of second degree rape and having sex with a minor was insufficient to establish that he posed an imminent risk to his teenage daughters and should thus be removed from the home. The Court admonished that the test is whether the respondent failed to exercise a “minimum degree of care—not maximum, not best, not ideal—and the failure must be actual, not threatened” ( id. at 9, 926 N.Y.S.2d 365, 950 N.E.2d 101). Quoting its earlier decision in Matter of Marie B., 62 N.Y.2d 352, 358, 465 N.E.2d 807, 477 N.Y.S.2d 87 [1984], the Afton Court noted that “these statutory requirements have constitutional underpinnings:

‘Fundamental constitutional principles of due process and protected privacy prohibit governmental interference with the liberty of a parent to supervise and rear a child except upon a showing of overriding necessity.... [Thus,] the State may not deprive a natural parent of the right to the care and custody of a child absent a demonstration of ... behavior evincing utter indifference and irresponsibility to the child's well-being’ Matter of Marie B., 62 N.Y.2d 352, 358, 477 N.Y.S.2d 87, 465 N.E.2d 807 [1984].”

Afton, 17 N.Y.3d at 9, 926 N.Y.S.2d 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, mentally or emotionally impaired, or is in imminent danger of being impaired” is insufficient to establish neglect under FCA § 1012(f)(i)(B). ( See also In the Matter of the Smith Jones Children, 34 Misc.3d 1226(A), 2012 WL 517188 [Fam. Ct. Kings Co. 2012];compare Matter of Joseph A., 91 A.D.3d 638, 937 N.Y.S.2d 250 [2d Dept. 2012] [the mother's mental illness and delusional beliefs were insufficient to support a finding of neglect in the absence of evidence that the children were harmed or placed in imminent risk of harm as a result of her illness] ). Unlike the baby in Dante M., who had a positive toxicology for cocaine, William tested negative for all unlawful substances and alcohol. And there was no evidence that the Mother's positive toxicology for marijuana—or her use of marijuana while she was pregnant with William—caused any physical, mental, or emotional harm to William or put him at risk of such harm. Indeed, there was no evidence presented that marijuana itself causes any harm to a developing fetus ( see, e.g., Matter of Smith Jones Children, 34 Misc.3d 1226(A), 2012 WL 517188 [Fam. Ct., Kings Co. 2012] ). Nor was there any evidence that other conduct of the mother in addition to or in combination with her use of marijuana placed William at risk of harm ( cf. In the Matter of Aaliyah G., 51 A.D.3d 918, 861 N.Y.S.2d 353 [2d Dept.2008] [father's misuse of marijuana and using the child as a barricade against the police constituted neglect] ).

In the absence of any evidence that William was actually or potentially injured as a result of the Mother's drug abuse, the allegations that she neglected William as a result of misuse of marijuana fail.

With respect to the allegations of misuse of marijuana leveled against the Father, there was no evidence that he ever used marijuana in the presence of William ( see In re Jeffrey M., 102 A.D.3d 608, 959 N.Y.S.2d 59 [1st Dep't 2013] ). Furthermore, since Petitioner failed to prove that the Mother's use of marijuana impaired William or placed him in imminent risk of impairment, its allegations that the Father neglected William by misusing marijuana or by failing to stop the Mother from smoking marijuana must, a fortiori, fail.

The Mother's Failure to Comply With A Prior Order of Disposition

The order of disposition in Akasha's case required the Mother to undergo a mental-health evaluation, engage in drug-treatment, anger-management, parenting-skills, and domestic-violence programs. Child Protective Specialist Leah Brown testified that the mother either did not begin or did not complete all those services. The Mother testified that she did begin at least some of the programs, but acknowledged that she did not complete them. She explained that she was at the end of a high-risk pregnancy, and, in addition to completing the mandated programs, she had to pursue housing and public assistance. She testified that she found traveling to all the required programs and obtaining appropriate housing and financial assistance was difficult while she was in the last trimester of a difficult pregnancy. Regardless of the reasons, she admitted that she did not fully comply with the Akasha disposition order.

Article 10 proceedings are not intended to be punitive ( In re Diane P., 110 A.D.2d 354, 357, 494 N.Y.S.2d 881 [2d Dept. 1985] ). Failure to comply with a disposition order is not to be condoned, but the response to such failure must be tempered by some consideration of the reasons for the noncompliance. When appropriate, a recalibration of the service plan to...

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1 cases
  • In re North
    • United States
    • New York Supreme Court — Appellate Division
    • 4 Junio 2014
    ...neglect proceeding commenced in connection with another child (Family Ct. Act § 1046[a][i]; see Matter of William N. [Kimberly H.-William N.], 40 Misc.3d 602, 616, 968 N.Y.S.2d 357). Further, upon concluding that the petitioner submitted insufficient proof that the mother derivatively negle......

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