Opinion
960 CAF 18–00306
10-04-2019
In the MATTER OF JACK S. and Marley S. Erie County Department of Social Services, Petitioner–Respondent; v. Leah S., Respondent–Appellant, and Franklin O.S., III, Respondent.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT. NICHOLAS G. LOCICERO, BUFFALO, FOR PETITIONER–RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RICHARD L. SULLIVAN OF COUNSEL), ATTORNEY FOR THE CHILDREN.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT.
NICHOLAS G. LOCICERO, BUFFALO, FOR PETITIONER–RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RICHARD L. SULLIVAN OF COUNSEL), ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: In this Family Court Act article 10 proceeding, respondent mother appeals from a "Corrected Order" that, inter alia, determined that she neglected the subject children pursuant to section 1012(f)(i)(B). We affirm.
Initially, we note that, on a prior appeal, we affirmed Family Court's contemporaneous determination that respondent father also neglected the subject children ( Matter of Jack S. [Franklin O.S.], 173 A.D.3d 1842, 105 N.Y.S.3d 667 [4th Dept. 2019] ). Nevertheless, we analyze the evidence separately with respect to this appeal by the mother.
Family Court Act § 1046(a)(iii) creates a presumption of neglect where, insofar as relevant here, a parent "repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment," and it is well settled that such presumption eliminates the need for evidence that the parent's conduct resulted in impairment, or the imminent danger of impairment, to the subject children's physical, mental, or emotional condition (see Matter of Samaj B. [Towanda H.-B.—Wade B.], 98 A.D.3d 1312, 1313, 951 N.Y.S.2d 308 [4th Dept. 2012] ; Matter of Nasiim W. [Keala M.], 88 A.D.3d 452, 453, 931 N.Y.S.2d 4 [1st Dept. 2011] ). Here, the evidence at the hearing establishes, among other things, that the mother lost a job due to her drug use, she appeared intoxicated by drugs or alcohol on an occasion when police officers arrived to check on respondent father, she admitted that she used cocaine during the relevant time period, and she took prescription drugs in a suicide attempt that left her hospitalized. The mother failed to rebut the presumption of neglect that arose from the evidence that she " ‘chronically and persistently misuses alcohol and drugs which, in turn, substantially impair[ed] ... her judgment while [the] child[ren were] entrusted to ... her care’ " ( Samaj B., 98 A.D.3d at 1313, 951 N.Y.S.2d 308 ). Additionally, the court properly drew " ‘the strongest possible negative inference’ against the [mother] after [she] failed to testify at the fact-finding hearing" ( Matter of Kennedie M. [Douglas M.], 89 A.D.3d 1544, 1545, 934 N.Y.S.2d 278 [4th Dept. 2011], lv denied 18 N.Y.3d 808, 2012 WL 539274 [2012] ; see Matter of Brittany W. [Patrick W], 103 A.D.3d 1217, 1218, 960 N.Y.S.2d 668 [4th Dept. 2013] ). Thus, contrary to the mother's contention, a preponderance of the evidence establishes that she neglected the children (see generally Matter of Kenneth C. [Terri C.], 145 A.D.3d 1612, 1612–1613, 43 N.Y.S.3d 819 [4th Dept. 2016], lv denied 29 N.Y.3d 905, 2017 WL 1574355 [2017] ; Matter of Timothy B. [Paul K.], 138 A.D.3d 1460, 1461, 30 N.Y.S.3d 455 [4th Dept. 2016], lv denied 28 N.Y.3d 908, 2016 WL 6783120 [2016] ).