| Matter of Anastasia G. |
| 2008 NY Slip Op 05930 [52 AD3d 830] |
| June 24, 2008 |
| Appellate Division, Second Department |
| In the Matter of Anastasia G., a Child Alleged to be Neglected.Administration for Children's Services, Respondent; Michael G.,Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Julie Steinerof counsel), for respondent. Eric M. Gansberg, Staten Island, N.Y., attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the father appeals from afact-finding order of the Family Court, Richmond County (DiDomenico, J.), dated November 21,2007, which, after a hearing, found that he had neglected the subject child.
Ordered that the fact-finding order is reversed, on the law, without costs or disbursements, thepetition is denied, and the proceeding is dismissed.
Family Court Act § 1012 provides, in relevant part, that " 'Neglected child' means a childless than eighteen years of age . . . whose physical, mental or emotional condition hasbeen impaired or is in imminent danger of becoming impaired as a result of the failure of his parent orother person legally responsible for his care to exercise a minimum degree of care . . . inproviding the child with proper supervision or guardianship . . . or by misusing a drugor drugs" (emphasis added).
Family Court Act § 1046 provides, in pertinent part, that: "(a) [i]n any hearing under thisarticle . . . proof that a person 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 asubstantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence,or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be primafacie evidence that a child of or who is the legal responsibility of such person is a neglected child exceptthat such drug or alcoholic beverage misuse shall not be prima facie evidence of neglect when suchperson is voluntarily and regularly participating in a recognized rehabilitative program" (emphasisadded).
In a fact-finding hearing, any determination that a child is abused or neglected must be supportedby a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]). Onlycompetent, material, and relevant evidence may be admitted into evidence at a fact-finding hearing(see Family Ct Act § 1046 [b] [iii]).
Here, the only evidence proffered by the petitioner that the Family Court could properly consider,since it had ruled certain other evidence inadmissible, was the testimony of one caseworker from theAdministration for Children's Services (hereinafter ACS). On this record, we conclude that thetestimony of the caseworker was insufficient to support, by a preponderance of the evidence, theFamily Court's finding that the father neglected the subject child (see generally Matter of TomiekeY., 32 AD3d 1041, 1042 [2006]). The caseworker testified that the father admitted during atelephone conversation that he used drugs. However, no evidence was elicited as to the type of drugsthe father used, the duration, frequency, or repetitiveness of his drug use, or whether he was ever underthe influence of drugs while in the presence of the subject child (see Matter of Stefanel TyeshaC., 157 AD2d 322, 326 [1990]).
The petitioner failed to establish a prima facie case of neglect against the father because there wasno evidence that he "repeatedly [misused] a drug or drugs . . . to the extent that it has orwould ordinarily have the effect of producing . . . a substantial state of stupor,unconsciousness, intoxication, hallucination, disorientation or incompetence, or a substantial impairmentof judgment, or a substantial manifestation of irrationality" (Family Ct Act § 1046 [a] [iii]).Moreover, absent evidence of repetitive drug use, the petitioner failed to proffer any evidence that thesubject child's physical, mental, or emotional condition had been impaired or was in imminent danger ofbecoming impaired (see Family Ct Act § 1012 [f] [i] [B]; Matter of Jennifer N.,173 AD2d 971, 972 [1991]; Matter of Stefanel Tyesha C., 157 AD2d at 327). In the absenceof any evidence of repeated drug use by the father or that the subject child had been impaired or was inimminent danger of impairment, the fact that the father was not enrolled in a drug treatment program isinsufficient to establish a prima facie case of neglect (see Matter of Keira O., 44 AD3d 668,670 [2007]). Accordingly, the record was insufficient to support a finding of neglect pursuant to FamilyCourt Act § 1012 (f) (i) (B) (cf. Matter of Keira O., 44 AD3d 668, 670 [2007];Matter of Sharonda S., 301 AD2d 532, 534 [2003]; Matter of Krewsean S., 273AD2d 393, 394 [2000]; Matter of Nassau County Dept. of Social Servs. v Denise J., 206AD2d 372 [1994]; Matter of Heidi S., 151 AD2d 578, 579 [1989]). Rivera, J.P., Fisher,Lifson and Dillon, JJ., concur.