Opinion
12-08-2016
In re YISRAEL R., A Child Under Eighteen Years of Age, etc., Jocelyn R., Respondent–Appellant, The Administration for Children's Services, Petitioner–Respondent.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Susan P. Greenberg of counsel), for respondent. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Susan P. Greenberg of counsel), for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
MAZZARELLI, J.P., FRIEDMAN, ACOSTA, ANDRIAS, MOSKOWITZ, JJ.
Order of disposition, Family Court, New York County (Clark V. Richardson, J.), entered on or about April 8, 2015, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about November 24, 2014, which found that the respondent mother neglected the subject child, unanimously affirmed, without costs. Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
The Family Court's finding of neglect is supported by a preponderance of the evidence (see Family Ct. Act §§ 1012[f][i][B], 1046[b][i] ). The evidence established that respondent incurred positive toxicology results for phencyclidine (PCP) on March 12 and March 31, 2013, in the last trimester of her pregnancy, just before the subject child was born on April 3, 2013, and that she has a prior history of PCP abuse (Matter of Omarion T. [Isha M.], 128 A.D.3d 583, 8 N.Y.S.3d 569 [1st Dept.2015] ). Moreover, she previously failed to successfully complete a drug treatment program, but maintained, after twice testing positive for PCP during pregnancy, that she did not believe drug treatment would benefit her because she did not have a drug problem (Matter of Nasiim W. [Keala M.], 88 A.D.3d 452, 931 N.Y.S.2d 4 [1st Dept.2011] ; see also Matter of Chastity O.C. [Angie O.C.], 136 A.D.3d 407, 407–408, 24 N.Y.S.3d 610 [1st Dept.2016] ). In these circumstances, contrary to respondent's assertions, "the lack of actual harm to [the child] is irrelevant" (id. at 408, 24 N.Y.S.3d 610 ; see also Matter of Cruz, 121 A.D.2d 901, 503 N.Y.S.2d 798 [1st Dept.1986] ).