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Court Decides Custody in Light of Fathers Drug Use


A New York Family Lawyer said that from 28 June 2006 to 3 July 2006, respondent father was admitted to W Hospital where he was diagnosed with psychotic disorder not otherwise specified, poly-substance dependence, substance induced psychotic disorder, borderline and anti-social personality traits. Following hospitalization, respondent father failed to take his prescribed medication (risperdal and klonopin), or obtain psychiatric treatment.

On 15 April 2007, respondent father committed acts of domestic violence against respondent mother in the presence of the child. Consequently, he was arrested and charged with assault in the third degree, attempted assault in the third degree, menacing in the third degree and harassment in the second degree. On 20 July 2007 and 4 October 2007, respondent father violated the order of protection issued by the Criminal Court in that he was observed in the presence of respondent mother. He was thereafter charged with two counts of criminal contempt in the second degree.

A New York Custody Lawyer said that the respondent father had a history of marijuana use as proven by his testing positive for that substance on 19 May 1998, 12 June 1998 and 29 May 2006.

On 26 October 2007, the Administration for Children’s Services (ACS) filed petitions against respondent mother and respondent father.

A New York City Family Lawyer said that according to ACS, both respondents neglected their child, X, born 11 January 2007; respondent father’s neglect related to a psychiatric hospitalization in 2006, acts of domestic violence against respondent mother in the presence of the child in 2007 and substance abuse in 1998 and 2006.

Respondent father appeared in court. Issue was joined, counsel was assigned and the subject child was remanded on consent and placed with the paternal grandmother.

Thereafter, an order of protection was entered against respondent father on consent directing him not to commit any family offenses against the subject child, excluding him from the home of the paternal grandmother (which had been his residence) and directing him to stay away from the child and the paternal grandmother’s home except for court-ordered visitation.

On 19 November 2007, respondent mother appeared in court. Issue was joined, counsel was assigned and the remand was continued on consent.

A New York City Custody Lawyer said that on 13 December 2007, the child was paroled to respondent mother on consent. The temporary order of protection was modified on consent to direct that respondent father refrain from committing any family offenses against respondent mother or the subject child and that he stay-away from both of them except for agency supervised visitation.

On 8 February 2008, respondent father moved to dismiss the allegations of mental illness and marijuana use. According to respondent father, these were “stale” and, even if true, insufficient to establish a cause of action for neglect; these concerned parental behavior predating the birth of the subject child; there was no allegation regarding any contemporaneous or ongoing conduct; and, there was no allegation that his prenatal conduct resulted in impairment or imminent risk of impairment to the child.

ACS and the Law Guardian opposed respondent father’s motion. According to them, it is true that the allegations regarding the prenatal use of marijuana were probably insufficient standing alone to state a cause of action; however, this must be viewed in light of the other allegations contained in the petition including respondent father’s hospitalization in 2006.

ACS and the Law Guardian then filed a motion for disclosure of respondent father’s 2006 psychiatric records.

According to ACS and the Law Guardian, respondent father’s hospital records may contain evidence establishing a serious substance abuse problem; and, while no affidavit from a psychiatrist or other expert or layperson with personal knowledge of the facts was submitted, “a diagnosis of mental illness is an ongoing condition that does not simply go away with the passage of time without compliance with a mental health program.”

According to ACS, someone with untreated mental illness of the nature that respondent father has posed a risk to many people including himself and the subject child X who was at that time in need of special protection due to his tender years; there was a strong likelihood that respondent father’s prior toxicology reports were not the sole evidence of a continuing pattern of drug use; there was a possibility that the records from W Hospital may show that respondent father’s drug history was not stale and his drug misuse actually further exacerbated his very concerning mental health; it should not be penalized for not stating everything that the records may contain with specificity since it could not obtain access to the complete W Hospital psychiatric records prior to the filing of the petition; and petitioner must be afforded the opportunity to obtain the records and present those records to the court, in order to prove its case rather than having the court reach a determination without being afforded the opportunity to prove the allegations.”

According to the Law Guardian, “if a child is born with a positive toxicology for drugs, ACS does not have to prove that the mother continued to use drugs after birth”; “the same should hold true for the father who is living with the mother and caring for the child”; although not alleged in the petition, “If the father was smoking marijuana in the presence of the mother he was exposing his unborn child to second hand smoke.”

In this pre-fact-finding Family Court Act article 10 proceeding, the issues are: whether to grant respondent father’s motion pursuant to CPLR § 3211 (a) (7) to dismiss the mental illness and marijuana use allegations in the neglect petition filed by ACS on the ground of failure to state a cause of action; and, whether to grant ACS’s motion for disclosure of respondent father’s psychiatric hospital records covering a six-day period from 28 June 2006 to 3 July 2006.

The court conditionally granted respondent father’s motion to dismiss but stayed that order for a period of seven days to permit the filing and service of an amended petition and denied ACS’s motion for disclosure. The basis for this ruling is discussed below.

On the motion to dismiss:

In a motion to dismiss based on insufficiency, the pleadings are to be afforded a liberal construction. The court must accept the facts alleged in the petition as true, accord the petitioner the benefit of every possible favorable inference which may be drawn from the petition, and determine only whether the facts as alleged fit within a cognizable legal theory. If the facts stated set forth any cause of action cognizable at law, the pleadings must be sustained. Indeed, the sole criterion is whether the pleading states a cause of action and if from its four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail. In this case, issue finding rather than issue resolution is the court’s function. The relevant inquiry is whether the proponent of the pleading has a cause of action, not whether he has stated one or whether he may ultimately be successful on the merits. “Draftsmanship is secondary.”

In a motion to dismiss based on “stale” allegations, it must be noted that the powers of the Family Court under article 10 are intended to be quite broad; Family Court proceedings do not focus on penal sanctions but are instead directed to the protection of minors; the statute is designed to “help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being”; and courts have repeatedly held that “the usual treatment of transgressions by limiting legal prosecutions thereof to a statutory period is unavailing in Family Court,” which recognizes no statute of limitations. Parent’s rights must be subordinate to the paramount purpose of the statute, which reflects the strong public policy of the State to protect a child’s interests against an unwilling or inept discharge of parental responsibilities. A court cannot close its eyes to any imminent danger to a child and normal concepts of staleness may not be applicable when a child may still be in such danger.

A finding of neglect should not be made lightly and should not rest upon past deficiencies alone. The neglect statutes are concerned with parental behavior not as behavior per se, but only and solely as it adversely affects the child in those areas of the child’s life about which the statutes have expressed concern. The court’s duty in a child neglect proceeding is to determine whether, despite any past deficiency, a child is at the time of the proceeding, suffering or likely to suffer from neglect.

Allegations in a neglect petition must refer to present, near contemporaneous or ongoing conduct, it may not be “stale.”

Moreover, well-established is the ruled that a parent’s prenatal conduct alone cannot be the basis of a neglect finding absent evidence indicating that the child was harmed or placed at imminent risk of harm by the parent’s actions. The purpose of a neglect proceeding is not to punish a parent for pre-natal marijuana use but to determine whether that use, together with the other evidence in the case, establish by a preponderance of the evidence that the subject child has been harmed by the parent’s actions, or would be at imminent risk of harm if placed in the parent’s care.

Here, a parent’s prenatal marijuana use cannot be the basis of a neglect finding absent evidence that the child was harmed or placed at imminent risk of harm by the parent’s actions.

Furthermore, it has been repeatedly held that a psychiatric diagnosis or prior psychiatric hospitalization, standing alone, is insufficient to establish neglect per se. The dispositive issue is whether the parent is now suffering from mental or emotional illness at the time of the hearing. In addition, even if the evidence establishes that a parent currently suffers from a mental illness, a finding of neglect is not warranted where there is no demonstration of any threat to the welfare of the child.

Here, the mental illness and substance abuse allegations rested upon past deficiencies alone, some dating back as far as 10 years, all of which pre-dated the birth of the child; it was never mentioned that respondent father used marijuana in the presence of the child or that he spent time with the child while under the influence of marijuana or any other drugs or alcohol; there was no mention that respondent father ever used marijuana shortly after the child’s conception or even after the child’s birth; there was no claim that respondent father’s prenatal substance abuse harmed the child or placed him at imminent risk of harm; and, there was nothing about the respondent father currently suffering from any mental illness, that he requires psychiatric hospitalization, or that he has demonstrated any psychotic symptomatology or thought disturbance during the two years period prior to the filing of the petition. Even assuming that respondent father’s 2006 hospitalization did permit the inference that he suffered from a mental illness, a finding of neglect could not be made since there was no allegation of any threat to the welfare of the subject child. It was never alleged that respondent father was incapable, due to a psychiatric, psychological or medical condition, of caring for the child.

On the motion for disclosure:

Here, even if respondent father’s 2006 psychiatric, psychological, or medical records did reveal additional evidence of respondent father’s pre-2006 drug use, it would be immaterial to establishing a cause of action for neglect in 2008; this request was a tacit acknowledgement that ACS and Law Guardian did not have credible evidence that their allegations concerning mental illness and drug use were true; and, this was clearly for the purpose of determining whether a cause of action existed which is, under the rules, not a permissible purpose. Evidently, ACS failed to make the requisite showing. Besides, the release of psychiatric and psychological records is governed by HIPPA and Mental Hygiene Law § 33.13 which permit the release of such records only upon a finding that the interests of justice significantly outweigh the need for confidentiality. Where the court finds that a cause of action has not been stated, the interest of justice in determining whether an act of child neglect has occurred is so limited that it does not outweigh the need for confidentiality of respondent’s psychiatric, psychological or medical records.

Considering the circumstances, the Court would be justified in granting respondent father’s motion to dismiss but it declines to do so. Rather, it conditionally dismissed the motion and gave the Commissioner for ACS a period of seven (7) days from the date of the decision and order within which to serve and file an amended petition that particularized the specific allegations of respondent’s mental illness and drug usage which were contemporaneous with such filing. If an amended petition was timely filed and sufficient under the law, the Court would then proceed to a plenary hearing regarding respondent father’s ability to care for the subject child; otherwise, the fact-finding would proceed against him based solely upon the allegation of violence.

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