Opinion
394 CAF 19-02323
05-07-2021
In the MATTER OF FAITH K. Ontario County Department of Social Services, Child Protective Unit, Petitioner-Respondent; v. Cindy R. and Jamie K., Respondents-Appellants. (Appeal No. 1.)
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT CINDY R. MICHAEL J. PULVER, NORTH SYRACUSE, FOR RESPONDENT-APPELLANT JAMIE K. HOLLY A. ADAMS, COUNTY ATTORNEY, CANANDAIGUA, FOR PETITIONER-RESPONDENT. SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILD.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT CINDY R.
MICHAEL J. PULVER, NORTH SYRACUSE, FOR RESPONDENT-APPELLANT JAMIE K.
HOLLY A. ADAMS, COUNTY ATTORNEY, CANANDAIGUA, FOR PETITIONER-RESPONDENT.
SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent mother and respondent father each appeal, as limited by their briefs, from that part of an order of fact-finding and disposition adjudging that they neglected the subject child. In appeal Nos. 2 and 3, respondents each appeal from two permanency orders that continued the subject child's placement with petitioner and adhered to the goal of returning the subject child to respondents. As a preliminary matter, appeal Nos. 2 and 3 must be dismissed inasmuch as the orders in those appeals either have expired by their terms or have been superseded by subsequent orders (see Matter of Giovanni K. , 62 A.D.3d 1242, 1242, 878 N.Y.S.2d 846 [4th Dept. 2009], lv denied 12 N.Y.3d 715, 884 N.Y.S.2d 691, 912 N.E.2d 1072 [2009] ; cf. Matter of Nevaeh L. [Katherine L.] , 177 A.D.3d 1400, 1401, 113 N.Y.S.3d 454 [4th Dept. 2019] ).
With respect to the order in appeal No. 1, we reject the mother's contention that there is no sound and substantial basis in the record to support Family Court's determination that she neglected the subject child. Contrary to the mother's contention, her medical records and the medical records of the subject child were properly admitted in evidence (see Matter of Zackery S. [Stephanie S.] , 170 A.D.3d 1594, 1594-1595, 96 N.Y.S.3d 438 [4th Dept. 2019] ; Matter of Skylar F. [David Judah P.] , 121 A.D.3d 611, 612, 995 N.Y.S.2d 63 [1st Dept. 2014] ), and those records established that the mother used cocaine sporadically throughout her pregnancy with the subject child and tested positive for cocaine the day before the subject child was born. Although the mother correctly contends that a parent's positive toxicology report, alone, is insufficient to establish imminent danger to a child (see Matter of Nassau County Dept. of Social Servs. v. Denise J. , 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ), the evidence at the fact-finding hearing, including the mother's prior Family Court records, which were also properly admitted in evidence (see Family Ct Act § 1046 [a] [i] ), established that the mother's "use of cocaine during her pregnancy, considered in conjunction with her prior, demonstrated inability to adequately care for her [older] children while misusing drugs[,] provided a sufficient basis to conclude, at the least, that [the subject child] was in imminent danger of impairment" ( Denise J. , 87 N.Y.2d at 80, 637 N.Y.S.2d 666, 661 N.E.2d 138 ; see Matter of Oscar Alejandro C.L. [Nicauris L.] , 161 A.D.3d 705, 706, 74 N.Y.S.3d 489 [1st Dept. 2018] ; cf. Matter of William N. [Kimberly H.] , 118 A.D.3d 703, 705, 987 N.Y.S.2d 406 [2d Dept. 2014] ).
Contrary to the mother's further contention, the court did not find that the subject child was neglected based only on the mother's disability. Rather, it was the mother's disability, combined with other factors , that established that the mother had neglected the child (see Matter of Joseph MM. [Clifford MM.] , 91 A.D.3d 1077, 1079, 937 N.Y.S.2d 377 [3d Dept. 2012], lv denied 18 N.Y.3d 809, 2012 WL 1033692 [2012] ; see also Matter of Sean P. [Brandy P.] , 156 A.D.3d 1339, 1340, 65 N.Y.S.3d 902 [4th Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1528127 [2018] ).
With respect to the father's contention in appeal No. 1, we conclude that his continued use of illicit substances as well as his failure to comply with a service plan instituted in relation to a proceeding involving his older child established that the subject child would be at imminent risk of harm if placed in his care (see Matter of Baby B.W. [Tracy B.H.] , 148 A.D.3d 1786, 1787, 49 N.Y.S.3d 599 [4th Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2683437 [2017] ). "[U]ntil the [father] is able to successfully address and acknowledge the circumstances that led to the removal of the other child[ ], we cannot agree that the return of the subject child to the [father's] custody ... would not present an imminent risk to the subject child's life or health" ( Matter of Julissia B. [Navasia J.] , 128 A.D.3d 690, 691-692, 7 N.Y.S.3d 596 [2d Dept. 2015] ).