| Matter of Arthur S. (Rose S.) |
| 2009 NY Slip Op 09667 [68 AD3d 1123] |
| December 22, 2009 |
| Appellate Division, Second Department |
| In the Matter of Arthur S. Administration for Children's Services,Appellant; Rose S., Respondent. |
—[*1] Christopher J. Robles, Brooklyn, N.Y., for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), attorneyfor the child.
In a child protective proceeding pursuant to Family Court Act article 10, the Administrationfor Children's Services appeals from an order of the Family Court, Richmond County(DiDomenico, J.), dated June 9, 2009, which, after a fact-finding hearing, dismissed the petition.
Ordered that the order is reversed, on the law, without costs or disbursements, the petition isreinstated, and the matter is remitted to the Family Court, Richmond County, for furtherproceedings, including a dispositional hearing.
Family Court Act § 1012 (f) defines a "[n]eglected child" as one whose "physical,mental or emotional condition has been impaired or is in imminent danger of becomingimpaired" because of a parent's failure "to exercise a minimum degree of care . . .by misusing a drug" (Family Ct Act § 1012 [f] [i] [B]). In addition, Family Court Act§ 1046 (a) (iii) provides that repeated drug use by a parent is prima facie evidence ofparental culpability (see Matter of Keira O., 44 AD3d 668 [2007]; Matter of LuisB., 302 AD2d 379 [2003]). In particular, that section states that "proof that a [parent]repeatedly misuses a drug . . . to the extent that it has or would ordinarily have theeffect of producing in the user thereof a substantial state of stupor, unconsciousness,intoxication, hallucination, disorientation, or incompetence, or a substantial impairment ofjudgment, or a substantial manifestation of irrationality, shall be prima facie evidence" of neglectexcept when the parent "is voluntarily and regularly participating in a recognized rehabilitativeprogram" (Family Ct Act § 1046 [a] [iii]; see Matter of Aaliyah G., 51 AD3d 918[2008]; Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family CtAct § 1012, at 351-355). This presumption is not rebutted by a showing that "the childrenwere never in danger and were always well kept, clean, well fed and not at risk" (Matter ofPaolo W., 56 AD3d 966, 967 [2008] [internal quotation marks omitted]; see Matter ofKrewsean S., 273 AD2d 393 [2000]).
At a conference with representatives of the Administration for Children's Services, the [*2]mother Rose S. admitted to using illegal drugs over a prolongedtime period. She tested positive for various illegal drugs, and she was arrested and charged withmarijuana possession shortly after being released from a detoxication program in 2008. Therecords indicate that she avoided taking drug tests during the relevant period, and that she wasasked to leave a treatment program in 2008 because of compliance issues. The mother'slong-term use of illegal drugs, failure to meaningfully treat her addiction, and history of erraticbehavior in the home established, by a preponderance of the evidence, that the mother neglectedthe child.
In this case, the mother's repeated attendance at drug rehabilitation programs " 'withoutmeaningful compliance would be further evidence of child neglect' " (Matter of Keira O.,44 AD3d at 671, quoting Matter of Maximo M., 186 Misc 2d 266, 276 [2000]). Where ashere, a prima facie case has been established pursuant to Family Court Act § 1046 (a) (iii),dismissal of a petition based "upon petitioner's failure to present any evidence of impairment ofthe physical, mental or emotional condition of [the child] or of imminent danger of suchimpairment pursuant to Family Court Act § 1012 (f) (i)" constitutes error as a matter oflaw (Matter of William T., 185 AD2d 413, 414 [1992]).
Accordingly, the order appealed from must be reversed, the petition reinstated, and thematter remitted to Family Court, Richmond County for further proceedings, including adispositional hearing. Skelos, J.P., Dickerson, Eng and Sgroi, JJ., concur.