| Matter of Keira O. |
| 2007 NY Slip Op 07443 [44 AD3d 668] |
| October 2, 2007 |
| Appellate Division, Second Department |
| 61—In the Matter of Keira O. Administration for Children'sServices, Appellant; Danielle O., Respondent. |
—[*1] David Schnall, Jamaica, N.Y., for respondent. Albino J. Testani, Jamaica, N.Y., Law Guardian.
In a child protective proceeding pursuant to Family Court Act article 10, the petitionerappeals from an order of the Family Court, Queens County (Salinitro, J.), dated February 27,2007, which, in effect, granted the mother's motion to dismiss the petition for failure to state aprima facie cause of action for neglect.
Ordered that the order is reversed, on the law, without costs or disbursements, the motion todismiss the petition is denied, the petition is reinstated, and the matter is remitted to the FamilyCourt, Queens County, for a fact-finding hearing, and, if necessary, a dispositional hearingthereafter.
The subject of this child protective proceeding, Keira O., was born on July 5, 2006. A fewdays after Keira's birth, the petitioner filed a Family Court article 10 petition charging therespondent mother with neglect based upon her abuse of illegal substances, including heroin andcocaine. More specifically, the petition alleged that the mother had been using heroin since shewas 14 years old, and that she had admitted to using heroin in April 2006, during her lasttrimester of pregnancy. In addition, the petition alleged that on three occasions in May and June2006, the mother, who was enrolled in a treatment program, had tested positive for the use ofnarcotic [*2]substances, including cocaine and opiates. Thepetition also noted that in October 2003 the Family Court, Queens County, found that the motherneglected Keira's older sibling. That finding was based, in part, on allegations of the mother'sdrug use and the order of disposition entered in that matter had directed the mother to enter andcomplete a drug treatment program. The petition further noted that a proceeding to terminate themother's parental rights to the older child was pending. The mother moved to dismiss the instantneglect petition, contending that it failed to state a prima facie cause of action because she wasattending a treatment program when she tested positive for drug use. In the order appealed from,the Family Court, in effect, granted the mother's motion to dismiss the petition, and we nowreverse.
On a motion to dismiss a petition in a child protective proceeding, the court must accept theallegations set forth in the petition as true and afford the petitioner the benefit of every favorableinference that can be drawn therefrom (see Matter of Alan FF., 27 AD3d 800 [2006]; Matter of ElysaQQ., 249 AD2d 857 [1998]; Matter of Iliana C., 206 AD2d 473 [1994]; Matter ofStefanel Tyesha C., 157 AD2d 322 [1990]). Applying this standard here, the allegations setforth in the petition are facially sufficient to state a cause of action for neglect and to warrant thatthis matter proceed to a fact-finding hearing. Family Court Act § 1012 (f) (i) (B) defines aneglected child to include one "whose physical, mental or emotional condition has been impairedor is in imminent danger of becoming impaired as a result of the failure of his [or her] parent" toexercise a minimum degree of care "in providing the child with proper supervision orguardianship . . . by misusing a drug or drugs." Pursuant to Family Court Act§ 1046 (a) (iii), proof of a parent's repeated drug use is prima facie evidence of neglect.Where, however, a parent is "voluntarily and regularly participating in a recognized rehabilitativeprogram," proof of a parent's repeated misuse of drugs is not prima facie evidence of neglect(see Family Ct Act § 1046 [a] [iii]). In those circumstances, "evidence that therespondent has repeatedly misused a drug or drugs . . . shall not establish that thechild is a neglected child in the absence of evidence establishing that the child's physical, mentalor emotional condition has been impaired or is in imminent danger of becoming impaired"(Family Ct Act § 1012 [f] [i] [B]).
Here, although the petition indicates on its face that the mother was enrolled in a treatmentprogram during her pregnancy, the issue of whether she was "voluntarily and regularlyparticipating" in this program is a factual one which should be explored at a hearing (see Matter of Hailey W., 42 AD3d943 [2007]; Matter of Luis B., 302 AD2d 379 [2003]). Furthermore, the mother'senrollment in a treatment program does not, standing alone, negate the possibility that the child'sphysical, mental, or emotional condition is in imminent danger of becoming impaired by themother's allegedly long-standing and continuing drug use. Notably, the petition specificallyalleges that the mother, despite her enrollment in a program, tested positive three times for theuse of cocaine and/or heroin during the very last stages of her pregnancy, clearly indicating a lackof compliance with treatment. It has been observed that "[i]n child protective proceedings, thecourt must have the ability to assess the parent's actual ability to care for the subject child. It iscompelling in this context that the court be able to determine the extent to which the respondent'sdrug use impairs her ability to provide proper supervision and guardianship of her child"(Matter of Maximo M., 186 Misc 2d 266, 276 [2000]; see Matter of Jocelyn S., 30 AD3d273 [2006]). The mother's "access to drug rehabilitation services without meaningfulcompliance would be further evidence of child neglect" (Matter of Maximo M., 186 Misc2d at 276).
Moreover, in determining that the petition was facially insufficient, the Family Court alsofailed to take into account the allegation that a finding of neglect previously had been enteredagainst the mother for her neglect of an older child, and that a proceeding to terminate herparental rights to that child was pending. Pursuant to Family Court Act § 1046 (a) (i),proof of a parent's [*3]neglect of one child is admissible evidenceon the issue of neglect of a sibling. Thus, the mother's inability to adequately care for her olderchild while misusing drugs may be considered in determining whether there is a basis forconcluding that the subject child is in imminent danger of impairment (see Matter of NassauCounty Dept. of Social Servs. v Denise J., 87 NY2d 73, 80 [1995]; Matter of Kayla M., 22 AD3d 856[2005]; Matter of Markus MM., 17AD3d 747 [2005]; Matter of Nassau County Dept. of Social Servs. v Laquetta H.,191 AD2d 567 [1993]). Accordingly, we reverse the order appealed from, reinstate thepetition, and remit the matter to the Family Court, Queens County, for a fact-finding hearing and,if necessary, a dispositional hearing thereafter. Spolzino, J.P., Krausman, Fisher and Angiolillo,JJ., concur.