| Matter of Jeffrey M. (Noemi C.) |
| 2013 NY Slip Op 00534 [102 AD3d 608] |
| January 31, 2013 |
| Appellate Division, First Department |
| In the Matter of Jeffrey M., a Child Alleged to beNeglected. New York City Administration for Children's Services, Appellant; Noemi C.,Respondent. |
—[*1] Randall S. Carmel, Syosset, for respondent. Steven N. Feinman, White Plains, attorney for the child.
Order, Family Court, Bronx County (Anne-Marie Jolly, J.), entered on or aboutMarch 31, 2011, which dismissed the neglect petition against respondent mother,unanimously affirmed, without costs.
Respondent is the mother of Jeffrey M., who was born in 2000. In September 2010,petitioner, the Administration for Children's Services (ACS), filed a neglect petitionagainst respondent pursuant to Family Court Act article 10. The petition alleged thatJeffrey's physical, mental or emotional condition had been impaired, or was in imminentdanger of becoming impaired, by the mother's misuse of drugs without attending arehabilitation program, and by her failure to provide him with adequate food, clothing,shelter, proper supervision or guardianship.
ACS's caseworker, who was the only witness at the fact-finding inquest, testified thatshe commenced a child protective investigation upon receipt of a report from the StateCentral Register of Child Abuse and Maltreatment. In the course of the investigation, thecaseworker visited and found respondent alone and living in a squalid abandonedbuilding on August 26, 2010. When questioned about Jeffrey's whereabouts, respondenttold the caseworker that the child had been living with his maternal aunt andgrandmother since September 2009 when she became ill with lupus and lost herapartment. Respondent stated that Jeffrey occasionally visited her at the abandonedbuilding. Respondent admitted to the caseworker that she used marijuana and crackcocaine and supported herself by means of panhandling and prostitution. Respondentstated, however, that she never used or was under the influence of drugs while aroundJeffrey.
The caseworker interviewed Jeffrey at his school on August 30, 2010. Jeffreyconfirmed that he was living with his grandmother and aunt and enjoyed doing so.Jeffrey stated that he occasionally visited respondent at the abandoned building. Jeffreyadded that he had never seen his mother with drugs or alcohol. When interviewed by thecaseworker, Jeffrey's grandmother [*2]and aunt said hewas doing well under their care and attending school. The record from respondent'shealth care provider indicated that respondent was depressed, suffering from lupus, usingcocaine and was subject to mood swings. At the conclusion of the fact-finding inquest,Family Court dismissed the petition upon finding that petitioner failed to meet its burdenof establishing that respondent had neglected Jeffrey. We affirm.
Insofar as relevant, Family Court Act § 1012 (f) provides as follows: "'Neglected child' means a child less than eighteen years of age . . . whosephysical, mental or emotional condition has been impaired or is in imminent danger ofbecoming impaired as a result of the failure of his parent or other person legallyresponsible for his care to exercise a minimum degree of care . . . inproviding the child with proper supervision or guardianship . . . or bymisusing a drug or drugs" (§ 1012 [f] [i] [B]). Family Court Act § 1046provides, in relevant part, that "[i]n any hearing under this article . . . proofthat a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent thatit has or would ordinarily have the effect of producing in the user thereof a substantialstate of stupor, unconsciousness, intoxication, hallucination, disorientation, orincompetence, or a substantial impairment of judgment, or a substantial manifestation ofirrationality, shall be prima facie evidence that a child of or who is the legalresponsibility of such person is a neglected child except that such drug or alcoholicbeverage misuse shall not be prima facie evidence of neglect when such person isvoluntarily and regularly participating in a recognized rehabilitative program" (§1046 [a] [iii]). In a fact-finding hearing, any determination that a child is abused orneglected must be based on a preponderance of the evidence (Family Ct Act §1046 [b] [i]). We conclude that the petition was properly dismissed because thecaseworker's testimony and the medical record in evidence were insufficient to support,by a preponderance of the evidence, a determination that respondent neglected thesubject child. Although respondent's living conditions were unsuitable, the recordpresents no basis for a conclusion that Jeffrey's "physical, mental or emotional conditionhas been impaired or is in imminent danger of becoming impaired" as a result of hisoccasional exposure to the environment in which his mother lived (see Family CtAct § 1012 [f] [i]). In this case, the child was thriving under the care of his auntand grandmother. The record is similarly insufficient to establish a prima facie case ofneglect under Family Court Act § 1046 (a) (iii) because, as noted above, thecaseworker's investigation disclosed that respondent neither used or was under theinfluence of drugs in Jeffrey's presence.
Moreover, there is no evidence of the frequency of respondent's drug use (see e.g. Matter of Anastasia G.,52 AD3d 830, 832 [2d Dept 2008]). Concur—Gonzalez, P.J., Saxe, DeGrasseand Freedman, JJ.