Suffolk Cnty. Dep't of Soc. Servs. v. Renee W. (In re Chrystal W.)

Full title: In the Matter of Chrystal W. (Anonymous). Suffolk County Department of…

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Feb 10, 2016

2016 N.Y. Slip Op. 986 (N.Y. App. Div. 2016)

Opinion

2014-10022

02-10-2016

In the Matter of Chrystal W. (Anonymous). Suffolk County Department of Social Services, respondent; v. Renee W. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Robert W. (Anonymous). Suffolk County Department of Social Services, respondent; v. Renee W. (Anonymous), appellant. (Proceeding No. 2)

Arza Feldman, Uniondale, NY (Steven A. Feldman of counsel), for appellant. Dennis M. Brown, County Attorney, Central Islip, NY (Timothy V. Sorell of counsel), for respondent. Mary C. Pelaez, Central Islip, NY, attorney for the children.

REINALDO E. RIVERA, J.P.

JOHN M. LEVENTHAL SANDRA L. SGROI SYLVIA O. HINDS-RADIX, JJ. (Docket Nos. N-10336-14, N-10337-14)

Arza Feldman, Uniondale, NY (Steven A. Feldman of counsel), for appellant.

Dennis M. Brown, County Attorney, Central Islip, NY (Timothy V. Sorell of counsel), for respondent.

Mary C. Pelaez, Central Islip, NY, attorney for the children.

DECISION & ORDER

Appeal from an order of fact-finding and disposition of the Family Court, Suffolk County (David Freundlich, J.), dated September 10, 2014. The order of fact-finding and disposition, insofar as appealed from, upon a decision of that court, made after a fact-finding hearing, found that the mother neglected the subject children.

ORDERED that on the Court's own motion, the mother's notice of appeal from the decision is deemed a notice of appeal from the order of fact-finding and disposition (see CPLR 5512[a]); and it is further,

ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

This is a neglect proceeding pursuant to Family Court Act article 10. After a fact-finding hearing, the Family Court, inter alia, found that the mother neglected the subject children by misusing drugs. The mother appeals.

Pursuant to Family Court Act § 1012(f), a neglected child is one "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care" by, inter alia, "misusing a drug or drugs" "to the extent that he [or she] loses self-control of his [or her] actions," except where the parent is participating in a rehabilitative program (Family Ct Act § 1012[f][i][B]). Unlike other forms of neglect, which require a showing that the child's well-being has been impaired or is in imminent danger of becoming impaired ( see Family Ct Act § 1012[f][i]; Matter of Alexis S.G. [Shanese B.], 107 AD3d 799), "proof that a person repeatedly misuses a drug or drugs . . . , 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, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of . . . such person is a neglected child" (Family Ct Act § 1046[a][iii]; see Matter of Kasiana UU. [Ricki TT.], 129 AD3d 1150, 1151; Matter of Madison PP. [Tina QQ.], 88 AD3d 1102, 1103; Matter of Paolo W., 56 AD3d 966, 967-968).

Here, the petitioner established, by a preponderance of the evidence (see Family Ct Act § 1046[b][i]), that the mother had repeatedly misused a drug or drugs to the extent that such misuse had the effect of producing in her a substantial state of stupor, unconsciousness, disorientation, or incompetence, or a substantial impairment of judgment, and that this constituted prima facie evidence that the children were neglected (see Family Ct Act § 1046[a][iii]). The mother failed to rebut this showing. Accordingly, the Family Court correctly found that the mother neglected the subject children within the meaning of Family Court Act § 1046(a)(iii).

The Family Court did not improvidently exercise its discretion in commencing the fact-finding hearing in the mother's absence (see Family Ct Act § 1042; see generally Matter of Dean J.K. [Joseph D.K.], 121 AD3d 896, 896-897; Matter of Evelyn R. [Franklin R.], 117 AD3d 957; Matter of Andrew MM., 279 AD2d 654, 655).

The mother's remaining contentions are without merit.

RIVERA, J.P., LEVENTHAL, SGROI and HINDS-RADIX, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court