Matter of Isiah (Terry C.)
NY Slip Op. 06954
October 4, 2017
This is an appeal brought by the Petitioner form an Order of the Family Court in Kings County. This Order granted a motion brought by the mother requesting to dismiss the petitions which had alleged that she neglected her children.
The court reversed the Order without costs and the mother’s motion is denied. The court reinstated the petitions and the matter was sent to Kings County Family Court.
The child at the center of this matter is named Isiah and was born 9/16/15. He tested positive for cocaine when he was born. The mother also tested positive for both marijuana and cocaine. The Petitioner filed a petition based on Family Court article 10, claiming that the mother was guilty of neglecting her 5 children.
The case proceeded to fact finding, and at the conclusion the court granted the mother’s motion to dismiss for failure to establish a prima facie case. The petitioner has appealed this ruling.
During a proceeding pursuant to article 10, the petitioner is considered to have the burden of proof in showing that the child was indeed neglected (Matter of Kenya 129 AD3d 978,979, Family Court Act 1046[b][i]. Other forms of neglect require proof that a child is in imminent danger or that their well-being is impaired in some way. Here, proof that a parent is repeatedly using drugs causing the parent to have sufficient impairment in judgment is enough (Matter of Chrystal, W. 236 AD3d 835, 836, citing Family Court Act 1046 [a][iii] is enough evidence that a child is being neglected. This holds true unless the parted is actively participating in a rehabilitation program (Family Court Act 1046 [a][iii].
Contrary to the court’s determination, when viewing the evidence most favorable to the petitioner and viewing what could reasonably be concluded from the evidence (Matter of Giovanni S [Jasmin A] 98 AD3d 1054, 1056, the Petitioner did indeed prove a case for neglect.
The fact is that Isiah tested positive for cocaine when he was born, and the mother tested positive for both cocaine and marijuana. The mother openly admitted that she had been using drugs since she was a teenager and has never attended therapy. Because she suffered from depression, she would lay in bed until 10:00 pm and would not engage with her children at all. She admitted that cocaine helped her get out of bed. She stated that she used cocaine shortly before the child’s birth. This establishes a case for neglect via Family Court Act 1046 (a)[iii], so impairment of the physical and mental needs of the children need not be established (Matter of Benicio H. 115 AD3d 857, Matter of Ishaq 121 AD3d 889.
The previous court erred in granting the motion to dismiss. Therefore, a new hearing is required (Matter of Marques 133 AD3d 654.
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