Opinion
1034 CAF 17–00049
10-05-2018
In the MATTER OF BENTLEY C. Yates County Department of Social Services, Petitioner–Respondent; v. Zachary D., Respondent–Appellant.
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT–APPELLANT. JESSICA L. BRYANT, PENN YAN, FOR PETITIONER–RESPONDENT. SUSAN ELIZABETH GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILD.
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT–APPELLANT.
JESSICA L. BRYANT, PENN YAN, FOR PETITIONER–RESPONDENT.
SUSAN ELIZABETH GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the amended petition is dismissed.
Memorandum: Respondent father appeals from an order of disposition, which brings up for review the order of fact-finding wherein Family Court found that he neglected the subject child (see Matter of Anthony L. [Lisa P.], 144 A.D.3d 1690, 1691, 41 N.Y.S.3d 641 [4th Dept. 2016], lv denied 28 N.Y.3d 914, 2017 WL 581722 [2017] ). We agree with the father that the court's finding of neglect is not supported by the requisite preponderance of the evidence (see generally Family Ct. Act § 1046[b][i] ). "[P]roof that a person repeatedly misuses ... drugs ... to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug ... misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program" ( § 1046[a][iii] ; see Matter of Kenneth C. [Terri C.], 145 A.D.3d 1612, 1613, 43 N.Y.S.3d 819 [4th Dept. 2016], lv denied 29 N.Y.3d 905, 2017 WL 1574355 [2017] ). Here, petitioner submitted evidence that the father tested positive for THC, oxycodone, and opioids on one occasion, which is insufficient to establish that the father repeatedly misused drugs (see Matter of Anna F., 56 A.D.3d 1197, 1198, 868 N.Y.S.2d 442 [4th Dept. 2008] ; cf. Matter of Darrell W. [Tenika C.], 110 A.D.3d 1088, 1089, 974 N.Y.S.2d 85 [2d Dept. 2013], lv denied 23 N.Y.3d 904, 990 N.Y.S.2d 161, 13 N.E.3d 661 [2014] ). The father's admission to using marihuana was also insufficient to meet petitioner's burden without further evidence as to the "duration, frequency, or repetitiveness of his drug use, or whether [the father] was ever under the influence of drugs while in the presence of the subject child" ( Matter of Anastasia G., 52 A.D.3d 830, 832, 861 N.Y.S.2d 126 [2d Dept. 2008] ; see Matter of Rebecca W., 122 A.D.2d 582, 583, 504 N.Y.S.2d 928 [4th Dept. 1986] ).