Opinion
700 CAF 19-02127
10-08-2021
In the MATTER OF ANNASTASIA P. Erie County Department of Social Services, Petitioner-Respondent; v. Kirstin P., Respondent-Appellant.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT. REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JONATHAN CHOI OF COUNSEL), ATTORNEY FOR THE CHILD.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JONATHAN CHOI OF COUNSEL), ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order of fact-finding and disposition that, inter alia, adjudged that she neglected the subject child. Contrary to the mother's contention, petitioner established by a preponderance of the evidence that she neglected the child (see § 1046 [b] [i] ). Here, petitioner established that the mother admitted to using cocaine during her pregnancy with the child, that the mother's hospital records indicated that she tested positive for cocaine during her pregnancy and had a history of polysubstance abuse, that the mother tested positive for cocaine less than three months after the child's birth, and that she refused to provide a urine sample on four other occasions (see § 1046 [a] [iii] ; Matter of Noah C. [Greg C.] , 192 A.D.3d 1676, 1677-1678, 145 N.Y.S.3d 266 [4th Dept. 2021] ; 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] ; Matter of Benicio H. [Charlene H.] , 115 A.D.3d 857, 858, 982 N.Y.S.2d 338 [2d Dept. 2014] ).
Insofar as the mother further contends that her participation in a drug treatment program is sufficient to bring this matter within the statutory exception for parents who are "voluntarily and regularly participating in a recognized rehabilitative program" ( Family Ct Act § 1046 [a] [iii] ), we reject that contention. There is no evidence that the mother's participation in the treatment program is voluntary (see Matter of Hailey W. , 42 A.D.3d 943, 944, 839 N.Y.S.2d 644 [4th Dept. 2007], lv denied 9 N.Y.3d 812, 846 N.Y.S.2d 602, 877 N.E.2d 652 [2007] ; Matter of Amber DD. , 26 A.D.3d 689, 690, 809 N.Y.S.2d 657 [3d Dept. 2006] ).