Opinion
05-15-2024
In the MATTER OF JEFFERSON C.-A. (Anonymous). Suffolk County Department of Social Services, respondent; v. Carlos T.-F. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Stephanie C.-A. (Anonymous). Suffolk County Department of Social Services, respondent; v. Carlos T.-F. (Anonymous), appellant. (Proceeding No. 2)
Powers Law, P.C., West Islip, NY (Jennifer S. Lippmann of counsel), for appellant. Christopher J. Clayton, County Attorney, Riverhead, NY (Jayne M. St. James of counsel), for respondent. Beth A. Rosenthal, Deer Park, NY, attorney for the children.
Powers Law, P.C., West Islip, NY (Jennifer S. Lippmann of counsel), for appellant.
Christopher J. Clayton, County Attorney, Riverhead, NY (Jayne M. St. James of counsel), for respondent.
Beth A. Rosenthal, Deer Park, NY, attorney for the children.
BETSY BARROS, J.P., PAUL WOOTEN, BARRY E. WARHIT, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 10, the father appeals from an order of fact-finding of the Family Court, Suffolk County (Caren Loguercio, J.), dated September 14, 2022. The order of fact-finding, after a fact-finding hearing, found that the father neglected the subject children.
ORDERED that the order of fact-finding is reversed, on the facts, without costs or disbursements, the petition is denied, and the proceedings are dismissed.
On May 7, 2021, while executing a search warrant, police officers from the Suffolk County Police Department discovered cocaine within a bedroom of an apartment in a house in Huntington Station. The father resided in the apartment with the mother and the subject children, who were born in 2016 and 2019. Days later, the Suffolk County Department of Social Services (hereinafter DSS) commenced these proceedings pursuant to Family Court Act article 10, alleging that the father neglected the children by possessing the cocaine and storing it in a location where "the children had easy access to it." In an order of fact-finding dated September 14, 2022, made after a fact-finding hearing, the Family Court found that the father neglected the children. The father appeals.
[1–6] "At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing that the subject child has been abused or neglected by a preponderance of the evidence" (Matter of Kamaya S. [Zephaniah S.], 218 A.D.3d 590, 592, 192 N.Y.S.3d 580 [internal quotation marks omitted]). "To establish neglect of a child, the petitioner must demonstrate, by a preponderance of the evidence, (1) that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship" (Matter of Chloe. P.-M. [Martinique P.], 220 A.D.3d 783, 784, 197 N.Y.S.3d 333 [internal quotation marks omitted]). "Article 10 erects a careful bulwark against unwarranted state intervention into private family life, for which its drafters had a deep concern" (Matter of Jamie J. [Michelle E.C.], 30 N.Y.3d 275, 284, 67 N.Y.S.3d 78, 89 N.E.3d 468 [internal quotation marks omitted]). "[T]he court is not required to wait until a child has already been harmed before it enters a finding of neglect" (Matter of Kiemiyah M. [Cassiah M.], 137 A.D.3d 1279, 1279, 28 N.Y.S.3d 411). However, "[n]eglect findings cannot be casually issued" and, instead "require proof of actual or imminent harm to the child as a result of a parent’s failure to exercise a minimum degree of care" (Matter of Jamie J. [Michelle E.C.], 30 N.Y.3d at 284, 67 N.Y.S.3d 78, 89 N.E.3d 468). The requirement of "[a]ctual or imminent danger of impairment [a]s a prerequisite to a finding of neglect … ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior" (Matter of Zahir W. [Ebony W.], 169 A.D.3d 909, 909-910, 94 N.Y.S.3d 329 [internal quotation marks omitted]). "In order for danger to be ‘imminent,’ it must be ‘near or impending, not merely possible’ " (Matter of Serina M. [Edward M.], 179 A.D.3d 925, 927, 118 N.Y.S.3d 116, quoting Nicholson v. Scoppetta, 3 N.Y.3d 357, 369, 787 N.Y.S.2d 196, 820 N.E.2d 840).
[7–12] Based upon these standards, a court may issue a finding of neglect in various circumstances involving the possession, use, or sale of illegal narcotics. For example, such a finding may be warranted where there is "proof of a parent’s repeated drug use" in a manner sufficient to constitute "prima facie evidence of neglect" pursuant to Family Court Act § 1046(a)(iii) (Matter of Camila G.C. [Matthew C.], 211 A.D.3d 934, 935, 180 N.Y.S.3d 274; see Matter of Jesse W. [Jesse W.], 189 A.D.3d 848, 849-850, 136 N.Y.S.3d 117). Further, evidence demonstrating that a parent stored drugs within the home in a location that was "readily accessible" to a child may be sufficient to support a finding of neglect (Matter of Jaielly R.H. [Kimberly V.], 132 A.D.3d 993, 993, 19 N.Y.S.3d 68; see Matter of Majesty M. [Brandy P.], 166 A.D.3d 775, 776, 89 N.Y.S.3d 96; Matter of Sarah A. [Daniel A.], 109 A.D.3d 467, 467, 970 N.Y.S.2d 273). Similarly, a neglect finding may be based upon evidence establishing that a parent exposed a child "to the very dangerous activity of narcotics trafficking" (Matter of Majesty M. [Brandy P.], 166 A.D.3d at 776, 89 N.Y.S.3d 96; see Matter of Paul J., 6 A.D.3d 709, 710, 775 N.Y.S.2d 373; Matter of Michael R., 309 A.D.2d 590, 590-591, 765 N.Y.S.2d 358), including, inter alia, evidence that the parent "packaged and sold narcotics in the presence of the child[ ]" (Matter of Paul J., 6 A.D.3d at 710, 775 N.Y.S.2d 373; see Matter of Michael R., 309 A.D.2d at 590-591, 765 N.Y.S.2d 358), "resided with the child in a home in which narcotics transactions were taking place" (Matter of Diamonte O. [Tiffany R.], 116 A.D.3d 866, 867, 983 N.Y.S.2d 441; see Matter of Essleiny A. [Rafael A.], 142 A.D.3d 862, 862, 37 N.Y.S.3d 542; Matter of Sarah A [Daniel A.], 109 A.D.3d at 467, 970 N.Y.S.2d 273), or "travel[ed] with the child[ ] to an arranged drug transaction" (Matter of Evan E. [Lasheen E.], 95 A.D.3d 1114, 1114, 943 N.Y.S.2d 782; see Matter of Eliani M.-R. [Sonia M.], 172 A.D.3d 636, 636, 102 N.Y.S.3d 181). By contrast, a parent’s "mere use of illicit drugs," without more, "is insufficient to support a finding of neglect" (Matter of Delanie S. [Jeremy S.], 165 A.D.3d 1639, 1639, 85 N.Y.S.3d 325; see Matter Anastasia L.-D. [Ronald D.], 113 A.D.3d 685, 688, 978 N.Y.S.2d 347; Matter of Anastasia G., 52 A.D.3d 830, 831, 861 N.Y.S.2d 126). Nor will the presence of illicit drugs in the home where the child resides be sufficient, standing alone, to support a finding of neglect (see Matter of Charisma D. [Sandra R.], 67 A.D.3d 404, 405, 889 N.Y.S.2d 13; cf. Matter of Brad I. [Brad J.], 117 A.D.3d 1242, 1244-1245, 985 N.Y.S.2d 758). In either scenar- io, a neglect finding will not be warranted absent evidence that the child suffered the requisite impairment, or that he or she was in imminent danger of suffering such impairment, as a result of the parent’s conduct (see Nicholson v. Scoppetta, 3 N.Y.3d at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840; Matter of Zahir W. [Ebony W.], 169 A.D.3d at 909-910, 94 N.Y.S.3d 329).
[13] Here, the Family Court’s finding that the father neglected the children was not supported by a preponderance of the evidence (see Matter of Charisma D. [Sandra R.], 67 A.D.3d at 405, 889 N.Y.S.2d 13; see generally Matter of Kingston T. [Diamond T.], 209 A.D.3d 743, 745, 175 N.Y.S.3d 577; Matter of Nabil H.A. [Vinda F.], 195 A.D.3d 1012, 1012, 150 N.Y.S.3d 128). Initially, contrary to the father’s contention, the record contained sufficient evidence for the court to infer that he intended to sell the cocaine that the officers found in his apartment, which weighed approximately four ounces. Nonetheless, his intent to sell these illicit drugs was insufficient, without more, to warrant a finding of neglect. The record, for example, contained no evidence establishing that the father engaged in drug transactions within the house or that he otherwise exposed the children to drug-trafficking activities (cf. Matter of Diamante O. [Tiffany R.], 116 A.D.3d at 867, 983 N.Y.S.2d 441; Matter of Evan E. [Lasheen E.], 95 A.D.3d at 1114, 943 N.Y.S.2d 782; Matter of Paul J., 6 A.D.3d at 710, 775 N.Y.S.2d 373). Nor was there evidence adduced at the hearing as to whether the father regularly engaged in the sale of drugs, or the manner in which he intended to sell the cocaine. Moreover, although the officers discovered the cocaine within the father’s bedroom closet, it was located on a five- or six-foot-high shelf and was otherwise stored in a manner that was not readily accessible to the children (see Matter of Majesty M. [Brandy P.], 166 A.D.3d at 776, 89 N.Y.S.3d 96; cf Matter of Jaielly R.H. [Kimberly V.], 132 A.D.3d at 993, 19 N.Y.S.3d 68). Finally, there was no indication in the record that the father ever used cocaine or any other illicit drugs. Absent evidence that the father’s conduct caused the requisite harm to the children or otherwise placed them in imminent danger of such harm, the court should not have found that he neglected them (see Matter of Jamie J. [Michelle E.C.], 30 N.Y.3d at 284, 67 N.Y.S.3d 78, 89 N.E.3d 468; Nicholson v. Scoppetta, 3 N.Y.3d at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840; Matter of Chaim R. [Keturah Ponce R.], 94 A.D.3d 1127, 1130, 943 N.Y.S.2d 195).
In light of our determination, we need not reach the father’s remaining contentions.
BARROS, J.P, WOOTEN, WARHIT and VENTURA, JJ., concur.