New York Criminal Lawyer Blog
In this Criminal case, the question presented is whether a positive toxicology for marijuana and a respondent mother’s admission to prior marijuana use are sufficient to establish neglect pursuant to Family Ct Act § 1012 (f) (i) (B) or § 1046 (a) (iii). The Administration for Children’s Services (hereinafter, “ACS”) contends that they are. ACS asserts that the mother’s repeated use of marijuana establishes a prima facie case of parental culpability and that a prima facie case is not rebutted by a showing that the children were never harmed or in danger of harm and were always healthy, well kept, clean and well fed. According to ACS, dismissal of the petition based on its failure to present any specific evidence of actual impairment or imminent danger of such impairment would constitute error as a matter of law.
A New York Criminal lawyer said that Respondent mother contends that a newborn’s positive toxicology for marijuana alone is insufficient to support a finding of neglect because the test result, in and of itself, does not prove that the child was physically, mentally or emotionally impaired, or in imminent danger of being impaired. She contends that relying solely on a positive toxicology for a neglect determination fails to make the necessary causative connection to all the surrounding circumstances that may or may not produce impairment or imminent risk of impairment in the newborn child.
Additionally, respondent mother asserts that the record is insufficient to establish a prima facie case since no evidence was elicited establishing the quantity, frequency or effect of marijuana use upon her or her ability to care for her children. She emphasizes that she never used or was under the influence and criminal marijuana possession or any other drug while in the presence of any of her children. She underscores that the older children were in the care of the maternal grandmother during these occasions.
Furthermore, citing the testimony of her expert witness, respondent mother contends that her occasional oral ingestion of marijuana was insufficient to satisfy the statutory requirements. Specifically, she asserts that her use did not result in “a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality”. Accordingly, she argues that Family Court Act § 1046(a) (iii) is inapplicable and since no evidence was adduced establishing actual impairment or imminent risk of impairment to the newborn or any of her other children, dismissal is warranted. The Attorney for the Children supports respondent mother’s assertions.
The Family Court Act defines a “neglected child” as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent to exercise a minimum degree of care in providing the child with proper supervision or guardianship, by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions”.
The first statutory element requires proof of actual or imminent danger of physical, mental or emotional impairment to the child. This prerequisite to a finding of neglect ensures that the Family Court, in deciding whether to authorize state intervention, focuses on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior.
The statute does not define “impairment” however, it defines “[i]mpairment of emotional health” and “impairment of mental or emotional condition” to include “a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy; provided, however, that such impairment must be clearly attributable to the unwillingness or inability of the criminal respondent to exercise a minimum degree of care toward the child”.
In a child protective proceeding based on allegations of substance abuse, ACS can attempt to satisfy its burden of proof with respect to actual or imminent danger of physical, mental or emotional impairment in one of two ways. First, ACS can attempt to establish a prima facie case pursuant to Family Court Act § 1046 (a) (iii). Second, it can introduce criminal evidence proving that the parent’s substance abuse resulted in actual or imminent danger of impairment to the physical, mental or emotional condition of the child pursuant to Family Court Act § 1012 (f) (i) (B). Notably, however, both Family Court Act § 1046 (a) (iii) and § 1012 (f) (i) (B) require a threshold showing of serious and ongoing substance abuse. Additionally, since the purpose of article 10 is to protect children from serious harm or potential harm — not punish parents for what may be deemed undesirable behavior — impairment or imminent risk of impairment remains an absolute prerequisite of a finding of neglect.
Notwithstanding ACS’s assertions to the contrary, proof of a prima facie case does not create a “presumption” of imminent risk or neglect. A presumption is binding on the court, unless rebutted. A prima facie case simply shifts the burden of going forward to the respondent, however, the burden of proving child maltreatment always remains with ACS. The respondent may then present proof challenging the prima facie case if she chooses, or rest and permit a decision on the merits on the strength of petitioner’s case. Proof of a prima facie case does not necessarily satisfy ACS’s ultimate burden of proof; nor does it compel a finding in accordance with that inference.
The Criminal Court also rejects the assertion by ACS that a prima facie showing can only be rebutted by evidence that the parent is regularly and voluntarily participating in a drug treatment program. There are many degrees of parental drug and alcohol use and abuse. Not all require treatment or support an inference that the parent has harmed their children or placed them at imminent risk of harm. An inference of impairment is only warranted where the parent is involved in regular or continuous drug (or alcohol) abuse that so substantially impairs their judgment or ability to function that future neglect is imminent.
The second statutory element requires proof of a link or causal connection between the parent’s conduct and the impairment or imminent danger of impairment to the child (see FCA §1012[f] [I]; [h]). This requirement reflects the Legislature’s recognition that the source of emotional or mental impairment — unlike physical injury — may be murky, and that it is unjust to fault a parent too readily. The Legislature, therefore, specified that such impairment must be “clearly attributable” to the parent’s failure to exercise the requisite degree of care.
After considering this statutory element, the Court of Appeals held that a newborn’s positive toxicology for cocaine is insufficient, in and of itself, to support a finding of neglect because the test result does not prove that the child has been physically, mentally or emotionally impaired, or that he is in imminent danger of becoming impaired in a manner clearly attributable to the parent’s failure to exercise the requisite degree of care. The Criminal Court reasoned, “[r]elying solely on a positive toxicology result for a neglect determination fails to make the necessary causative connection to all the surrounding circumstances that may or may not produce impairment or imminent risk of impairment in the newborn child”.
The Appellate Division, Second Department reversed, holding that “[t]he mere fact that a designated sex offender resides in the home is not sufficient to establish neglect absent a showing of actual danger to the subject children.” The Court of Appeals affirmed rejecting the argument that the father’s status as a sex offender convicted of crimes involving minors was sufficient to establish that he posed a danger to his own children. The Criminal Court rejected the suggestion that an untreated sex offender residing with his children is presumably a neglectful parent.
The Court stated that the Sex Offender Registration Act (SORA) assessment was not designed to ascertain whether the offender met the Family Court Act’s definition of neglect. The Court indicated that even if a level three SORA assessment were evidence of likely recidivism, Child Protective Services failed to prove that the father’s crimes endangered his children.
The Court again emphasized that a presumption of risk cannot be used as a substitute for evidence to establish the necessary causal connection between parental misconduct and the alleged harm or risk of harm to the children. The Court noted that such bare allegations do not meet the Family Court Act’s requirement for proof by a preponderance of the evidence of actual or imminent harm as a result of the parent’s failure to exercise a minimal degree of care.
The Court stressed that Child Protective Services failed to present evidence, expert or otherwise, demonstrating a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produced the risk of impairment. In other words, CPS failed to show how respondent’s criminal conduct posed a risk of harm to his own children. The fact that respondent’s crimes involved victims younger than 18 was deemed insufficient to establish that he breached a minimum duty of parental care or posed a near or impending harm to his children. The Criminal Court added that although respondent was evasive and, in the Family Court’s view, lacked candor or insight into his behavior, that was insufficient to fill the evidentiary gap and prove the statutorily required elements.
The third statutorily required element requires proof that the parent failed to exercise a minimum degree of care “by misusing a drug or drugs.” The court must evaluate parental behavior objectively and determine whether a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing.
A minimum degree of care is a “baseline of proper care for children that all parents, regardless of lifestyle or social or economic position, must meet”. Since the drafters of Article 10 wished to avoid unwarranted state intervention into private family life and since the purpose of the statute is to protect children from serious harm or potential harm the statutory test is a minimum degree of care “not maximum, not best, not ideal and the failure must be actual, not threatened.”
Consideration of these factors in light of the facts at bar leads this Criminal Court to conclude that the allegations of neglect must be dismissed since ACS has failed to establish the requisite elements of neglect by a preponderance of the evidence.
Respondent’s positive toxicology for marijuana and her admission to orally ingesting it at other unspecified times, in unspecified quantities, at unspecified intervals, prior to the birth of the baby, when the older children were in the care of their maternal grandmother, are insufficient to establish a prima facie case pursuant to Family Court Act § 1046[a] [iii]). Additionally, ACS’s failure to introduce any evidence that respondent’s marijuana possession and use resulted in harm or an imminent risk of harm to any of the children renders the proof insufficient to sustain a finding of neglect pursuant to Family Court Act § 1012 (f)(i)(B).
Proof of a prima facie case requires evidence that the parent repeatedly misused a drug to such an extent that it caused a “substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality”. In the instant case, ACS succeeded in establishing that respondent used marijuana on more than one occasion. ACS failed, however, to establish that respondent’s occasional oral consumption of marijuana would ordinarily have resulted in the level of impairment outlined in the statute.
Accordingly, ACS’s attempt to establish a prima facie case was defeated by evidence that respondent’s substance abuse did not rise to the level contemplated by the statute. ACS failed to introduce sufficient proof to support a criminal inference that respondent harmed her children or placed them at imminent risk of harm. Such an inference is not warranted where, as here, the evidence fails to establish that respondent is not involved in regular or continuous drug abuse that so substantially impaired her judgment or ability to function that future neglect is imminent.
The evidence adduced in the instant case establishes that all of the children were, in fact, thriving in their mother’s care. Ivan was not born prematurely. His Apgar score was nine. He did not have a low birth weight. He did not have any withdrawal symptoms. He did not require a specialized level of care as a result of his mother’s actions. Although he was admitted to the hospital’s Intensive Care Unit, it was for an infection that was unrelated to his positive toxicology.
Additionally, the record is insufficient to establish a prima facie case since no evidence was adduced establishing the quantity, frequency or effect of criminal marijuana use upon respondent or her ability to care for the children. There is no indication that respondent ever used or was under influence of marijuana or any other drug while in the presence of any of her children. In fact, respondent’s marijuana possession and use took place prior to the birth of Ivan when his older siblings were in the care of their maternal grandmother.
For each of the forgoing reasons, it is ORDERED, that pursuant to Family Court Act §1051 (c), facts sufficient to sustain the petitions have not been established and the petitions are, therefore, dismissed.
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