| Matter of Lavountae A. |
| 2008 NY Slip Op 10266 [57 AD3d 1382] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Lavountae A. and Others, Infants. Monroe CountyDepartment of Human Services, Respondent; Laticia A., Appellant. |
—[*1] Daniel M. Delaus, Jr., County Attorney, Rochester (Paul N. Humphrey of counsel), forpetitioner-respondent. Patricia A. Gibbons, Law Guardian, Rochester, for Lavountae A., Yacier A. and SabraejunaM.
Appeal from an order of the Family Court, Monroe County (Marilyn L. O'Connor, J.), enteredFebruary 2, 2007 in a proceeding pursuant to Family Court Act article 10. The order, among otherthings, adjudged that respondent neglected her children and placed the children in the care and custodyof petitioner.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: Petitioner commenced this proceeding in July 2005, alleging that respondent motherneglected the children at issue herein. Contrary to the contention of the mother, Family Court properlydetermined that petitioner established by a preponderance of the evidence that she failed to exercise aminimum degree of care in supplying the children with adequate food, and in failing to provide thechildren with proper supervision or guardianship by misusing marihuana, thereby placing them inimminent danger of becoming impaired (see Family Ct Act § 1012 [f] [i] [A], [B]). Theevidence presented at the hearing on the petition established that there was no food in the house inmid-June 2005 and that, although the mother had given the children's maternal grandmother some foodstamps to use while the grandmother cared for the children, the evidence also established that themother had used the remaining food stamps to purchase food for a birthday party for her brother. Theevidence further established that the mother admitted that she had smoked marihuana during herpregnancy with the child who was born in February 2005, and that she had been discharged from asubstance abuse treatment program based on her failure to complete the program successfully. It is wellestablished that "a finding of neglect may be appropriate even when a child has not been actuallyimpaired, in order to protect that child and prevent impairment" (Matter of Nassau County Dept. ofSocial Servs. v Denise J., 87 NY2d 73, 79 [1995]; see Matter of Carolyna L., 305 AD2d1112 [2003]). Furthermore, the mother failed to testify, and thus the court properly drew "the strongestinference that the opposing evidence permits" (Denise J., 87 NY2d at 79; see Matter ofVivian OO., 34 AD3d [*2]1111, 1114 [2006], lv denied8 NY3d 808 [2007]). It may therefore be inferred that the children were at imminent risk ofbecoming impaired as a result of the mother's failure to supply adequate food for the children, and infailing to provide proper supervision or guardianship for them based on her use of marihuana (seegenerally Denise J., 87 NY2d at 79-80).
All concur except Lunn and Peradotto, JJ., who dissent and vote to reverse in accordance with thefollowing memorandum:
Lunn and Peradotto, JJ. (dissenting). We respectfully dissent. We agree with respondent motherthat petitioner failed to establish a prima facie case of neglect based on her alleged repeated misuse ofdrugs inasmuch as there was no evidence presented with respect to the frequency of her use ofmarihuana or the effect of marihuana on her mental state, including whether her marihuana usesubstantially impaired her judgment (see Family Ct Act § 1046 [a] [iii]; cf. Matter of Hailey W., 42 AD3d 943,944 [2007], lv denied 9 NY3d 812 [2007]). We note that, contrary to the conclusion of themajority, Family Court determined only that petitioner failed to establish by a preponderance of theevidence that the mother neglected her children by misusing drugs (see Family Ct Act §1012 [f] [i] [B]; § 1046 [b] [i]; see generally Matter of Philip M., 82 NY2d 238,243-244 [1993]; Matter of Stephanie B., 245 AD2d 1062 [1997]). Indeed, the recordestablishes that the court did not in fact determine that the mother failed to supply the children withadequate food (see Family Ct Act § 1012 [f] [i] [A]), despite the statement of themajority to the contrary. Nevertheless, even assuming, arguendo, that the court determined that themother neglected her children both with respect to her misuse of drugs and her failure to supply themwith adequate food, we conclude that petitioner failed to establish the requisite causal connectionbetween either the mother's admitted marihuana use or the mother's failure to have any food in thehouse or food stamps on one occasion and any alleged harm or imminent harm to the children resultingtherefrom (see Matter of Rebecca W., 122 AD2d 582 [1986]). To the contrary, thecaseworker described the children as appearing to be "healthy" during her investigation of this case(see Matter of Justin D., 143 AD2d 346, 348 [1988]). We therefore would reverse the orderand dismiss the petition. Present—Scudder, P.J., Martoche, Lunn, Peradotto and Green, JJ.