Opinion
16091 Dkt. No. NN-32551/18 Case No. 2021–03816
06-07-2022
In the MATTER OF AMARA C., A Child Under Eighteen Years of Age, etc., Wanda C., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
The Reiniger Law Firm, New York (Douglas H. Reiniger of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Amy McCamphill of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child.
The Reiniger Law Firm, New York (Douglas H. Reiniger of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Amy McCamphill of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child.
Gische, J.P., Webber, Singh, Gonza´lez, Pitt, JJ.
Order, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about July 19, 2021, which, after a hearing, determined that respondent mother neglected the subject child, unanimously affirmed, without costs.
A preponderance of the hearing evidence establishes that respondent neglected the child (see Family Court Act § 1012[f][i][B] ; § 1046[a][iii]). This evidence, including respondent's admissions against interest, demonstrates that respondent consumed illicit drugs and alcohol during pregnancy, dropped out of her drug rehabilitation program soon after the child's birth, and was not receiving treatment for her mental illness. The evidence that respondent abused drugs, including cocaine and alcohol, to the point of loss of consciousness, during and after her pregnancy, supports a presumption of neglect, which respondent failed to rebut by showing that she had re-entered a substance abuse program ( Family Court Act § 1046[a][iii]; see Matter of Madison M. [Jennifer P.], 140 A.D.3d 631, 631, 33 N.Y.S.3d 268 [1st Dept. 2016] ; Matter of Yisrael R. [Jocelyn R.], 145 A.D.3d 491, 43 N.Y.S.3d 295 [1st Dept. 2016] ). The presumption of neglect based on substance abuse, pursuant to Family Court Act § 1046(a)(iii), "obviates the need to present proof of the child's physical, emotional or mental impairment or an imminent risk thereof as a consequence of the parent's behavior" ( Matter of Nasiim W. [Keala M.], 88 A.D.3d 452, 453, 931 N.Y.S.2d 4 [1st Dept. 2011] ).
The finding of neglect is also supported by the evidence that respondent suffers from an untreated mental illness, bipolar disorder, which "interfere[s] with her judgment and parenting abilities, thus placing [the child] ... at imminent risk of physical, mental, or emotional impairment" ( Matter of Ruth Joanna O.O. [Melissa O.], 149 A.D.3d 32, 39, 49 N.Y.S.3d 374 [1st Dept. 2017], affd 30 N.Y.3d 985, 65 N.Y.S.3d 122, 87 N.E.3d 154 [2017] ; see Matter of Daleena T. [Wanda W.], 145 A.D.3d 628, 629, 42 N.Y.S.3d 824 [1st Dept. 2016] ). In particular, respondent collapsed on the sidewalk while pushing the child in her stroller, which rolled toward the street, and then was so agitated at the hospital that she had to be sedated (see Matter of Adam T. [Artur T.], 186 A.D.3d 1179, 1180, 131 N.Y.S.3d 15 [1st Dept. 2020] ).
Certified hospital records concerning respondent's treatment during her pregnancy, which document her history of substance abuse and mental health issues and contain statements relevant to her diagnosis and treatment, are admissible under the business exception to the hearsay rule (see Matter of Zackery S. [Stephanie S.], 170 A.D.3d 1594, 1595, 96 N.Y.S.3d 438 [4th Dept. 2019] ). The finding of neglect is not based solely on respondent's use of drugs before the child was born, but that evidence is relevant to her long-standing substance abuse problems and mental health conditions, and it was properly considered in conjunction with other evidence of her conduct after the child's birth (see Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 75, 79–80, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ; Matter of Yisrael R., 145 A.D.3d at 492, 43 N.Y.S.3d 295 ).