| Matter of Paolo W. |
| 2008 NY Slip Op 09124 [56 AD3d 966] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Paolo W. and Another, Children Alleged to beNeglected. Schenectady County Department of Social Services, Appellant; Paul W.,Respondent. |
—[*1] Richard Abbott, Albany, for respondent. Karen Crandall, Law Guardian, Schenectady.
Mercure, J.P. Appeal from an order of the Family Court of Schenectady County (Taub,J.H.O.), entered May 7, 2007, which dismissed petitioner's application, in a proceeding pursuantto Family Ct Act article 10, to adjudicate the subject children to be neglected.
In July 2006, petitioner received two hotline telephone calls reporting that respondent and hiswife were abusing heroin while caring for their two children (born in 1998 and 2004). Followingan investigation and respondent's failure to comply with drug screens, as well as his dismissalfrom a recommended drug treatment program for noncompliance, petitioner commenced thisproceeding, alleging that respondent neglected the children. A fact-finding hearing was held,during which respondent and two senior caseworkers testified, and Family Court thereafterdismissed the petition. Petitioner appeals, and we now reverse.
Family Ct Act § 1012 (f) (i) (B) defines a "[n]eglected child" as one whose "physical,mental or emotional condition has been impaired or is in imminent danger of becoming [*2]impaired" because of a parent's failure "to exercise a minimumdegree of care . . . by misusing a drug." In addition, Family Ct Act § 1046 (a)(iii) provides that severe parental drug use is prima facie evidence of parental culpability (seeMatter of William T., 185 AD2d 413, 414 [1992]; see also Matter of Philip M., 82NY2d 238, 246 [1993]; Matter ofAshley RR., 30 AD3d 699, 700 [2006]). In particular, that section states that "proof thata [parent] repeatedly misuses a drug . . . to the extent that it has or wouldordinarily have the effect of producing in the user thereof a substantial state of stupor,unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantialimpairment of judgment, or a substantial manifestation of irrationality, shall be prima facieevidence" of neglect except when the parent "is voluntarily and regularly participating in arecognized rehabilitative program" (Family Ct Act § 1046 [a] [iii] [emphasis added]; see Matter of Amber DD., 26 AD3d689, 690 [2006]; see also Besharov, Practice Commentaries, McKinney's Cons Lawsof NY, Book 29A, Family Ct Act § 1012, at 351-352). In other words, "[t]he presumptioncontained in Family [Ct] Act § 1046 (a) (iii) operates to eliminate a requirement of specificparental conduct vis-à-vis the child and neither actual impairment nor specific risk ofimpairment need be established" (Matter of Stefanel Tyesha C., 157 AD2d 322, 328[1990], appeal dismissed 76 NY2d 983 [1990]; Matter of William T., 185 AD2dat 414).
Here, caseworkers testified that respondent was actively using heroin, and respondentadmitted both to using between two and six bags of heroin per day and that his withdrawals wereso bad that he could not function. He further admitted that he was dismissed from a drugtreatment program for noncompliance. Thus, as Family Court concluded, petitioner established aprima facie case and the presumption of neglect applied. The court then found, however, that thepresumption was rebutted by the testimony of petitioner's witnesses indicating that "the childrenwere never in danger and were always well kept, clean, well fed and not at risk."
As this Court has previously stated, when a prima facie case has been established pursuant toFamily Ct Act § 1046 (a) (iii), dismissal of a petition based "upon petitioner's failure topresent any evidence of impairment of the physical, mental or emotional condition of either ofthe children or of imminent danger of such impairment pursuant to Family [Ct] Act § 1012(f) (i)" constitutes error as a matter of law (Matter of William T., 185 AD2d at 414).Inasmuch as petitioner established a prima facie case of neglect and there is no evidence thatrespondent is engaged in any rehabilitative programs, petitioner proved neglect due torespondent's substance abuse and, therefore, we reverse and remit this matter to Family Court fora dispositional hearing (see Matter of Krewsean S., 273 AD2d 393, 394 [2000];Matter of William T., 185 AD2d at 415; see also Matter of Hailey W., 42 AD3d 943, 944 [2007], lvdenied 9 NY3d 812 [2007]; Matter of Amber DD., 26 AD3d at 690).
Spain, Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, petition granted and matter remitted to the Family Court of SchenectadyCounty for further proceedings not inconsistent with this Court's decision.