Opinion
04-13-2017
In re QUALIAYAH J., and Another., Children Under the Age of Eighteen Years, etc., Taneka J., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
FRIEDMAN, J.P., RICHTER, MAZZARELLI, GISCHE, JJ.
Order, Family Court, New York County (Clark V. Richardson, J.), entered on or about July 9, 2015, which, after a hearing, found that respondent mother neglected the subject children, unanimously affirmed, without costs. Appeal from dispositional order, same Court and Justice, entered on or about March 4, 2016, which placed the children in the custody of the Commissioner of Social Services until the next scheduled permanency hearing, unanimously dismissed, without costs, as academic.
The mother's regular, long-term drug use while the children were in her care constituted prima facie evidence of neglect, and she failed to rebut the statutory presumption by showing that she was participating in treatment (Family Ct. Act § 1046[a][iii] ). In fact, the evidence affirmatively showed that the mother had refused all of the agency's referrals and maintained that she was not addicted to marijuana. The Family Court properly determined that the mother had neglected the children on account of her drug use (Matter of Nadia S. [Ron S.], 138 A.D.3d 526, 527, 29 N.Y.S.3d 349 [1st Dept.2016] [child neglected due to father's "admitted use of marijuana almost every day and his refusal to seek treatment"] ). The deplorable and unsanitary condition of the mother's apartment lends further support to the Family Court's neglect finding (Matter of Ze'Nya G., 126 A.D.3d 566, 3 N.Y.S.3d 577 [1st Dept.2015] ).
The mother's appeal from the dispositional order is dismissed as academic. The order was superseded by a permanency hearing order, from which no appeal was taken (Matter of Skye C. [Monica S.], 127 A.D.3d 603, 604, 8 N.Y.S.3d 126 [1st Dept.2015] ). In any event, the mother's objection to the visitation terms of the dispositional order are without merit, as the order does not grant the children an unconditional "veto" power over her visitation, but simply directed the agency to schedule visits if and when either the children or the mother requested them.
We have considered the mother's remaining contentions and find them unavailing.