Opinion
6883
06-14-2018
IN RE THAMEL J., A Dependent Child Under Eighteen Years of Age, etc., Deryck T.J., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Andrew J. Baer, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Daniel Matza–Brown of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the child.
Andrew J. Baer, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Daniel Matza–Brown of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the child.
Renwick, J.P., Gische, Andrias, Kapnick, Singh, JJ.
Order of fact-finding, Family Court, New York County (Clark V. Richardson, J.), entered on or about March 9, 2017, which, inter alia, determined, after a hearing, that respondent father neglected the subject child, unanimously affirmed, without costs.
A preponderance of the evidence established that the father neglected the child in that he knew or should have known that the mother was smoking marijuana while she was pregnant with the child, but failed to take any steps to stop her drug use (see Matter of Ja'Vaughn Kiaymonie S. [Nathaniel S.], 146 A.D.3d 422, 423, 44 N.Y.S.3d 400 [1st Dept. 2017] ). Evidence of the child's positive toxicology, as well as his low birth weight and one-week stay in the neonatal intensive care unit following his birth, was sufficient to support a finding of neglect (see Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ).
Furthermore, the father ignored his own failure to exercise a minimum degree of care with respect to his parenting responsibilities. The record shows that he smoked marijuana with the mother while she was pregnant, including the day before the child's birth, failed to comply with his service plan relating to another child, and failed to submit to drug testing (see Matter of Baby B.W. [Tracy B.H.], 148 A.D.3d 1786, 49 N.Y.S.3d 599 [4th Dept. 2017], lv denied 29 N.Y.3d 912, 63 N.Y.S.3d 2, 85 N.E.3d 97 [2017] ). There exists no basis to disturb the court's credibility determinations (see generally Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975].