New York Family Law Blog
On November 8, 2010, ACS (Administration for Children’s Services) filed petitions against a mother alleging that her six children were neglected children pursuant to Family Court Act. At that time, the youngest child was a new-born and the oldest child, was 16 years old. Five of the children were living with their mother in New York City having recently relocated from Washington, D.C. A 14 year old daughter had returned to Washington D.C., after coming to New York City briefly with her siblings when they relocated.
A New York Family Lawyer said the petitions alleged that the respondent mother failed to provide the children with proper supervision and guardianship. Specifically, the petitions alleged that the school-age children were not enrolled in school in New York City during the 2010 2011 academic year until October 14, 2010. Additionally, the petitions alleged that the respondent misused marijuana; that she gave birth with a positive toxicology for marijuana and that she was not participating in a drug treatment program. A fact-finding hearing was conducted before the Court.
A New York Custody Lawyer said the ACS called two witnesses on their direct case, the caseworker and the respondent mother. In addition ACS introduced a number of documents into evidence. These included oral report transmissions dated November 3, 2010 and November 4, 2010 as well as the hospital records for the mother and the baby.
The hospital records introduced into evidence establish that the respondent and the baby tested positive for marijuana on the day the baby was born. In all other respects the baby was born healthy and full-term. He weighed 3020 grams. He measured 49.5 cm. in length and he was born at 38 plus 6 weeks.
A Brooklyn Family Lawyer said the records establish that the baby developed a mild abdominal distension when he was three days old. After x-rays were taken, doctors described his condition as a non-obstructive bowel gas pattern. They diagnosed him with presumed sepsis and treated him with antibiotics for seven days. As a result of the infection the baby was placed in intensive care. According to the documentary evidence the infection was not related to the positive toxicology results.
The caseworker’s testimony and progress notes establish that she visited the family’s home on November 4, 2010. The maternal grandmother was caring for the four older children while their mother was in the hospital. The oldest child had already returned to Washington D.C.
The caseworker observed that the home was neat and well equipped. She found appropriate sleeping arrangements, baby clothing, a crib, a bassinet, a play pen, toys and other baby provisions. She noted that none of the children needed medical attention. None of them had any observable delays or disabilities and that they were all free from any marks or bruises.
A Brooklyn Child Custody Lawyer said the caseworker interviewed each of the four children separately. She described each of them as very willing to share with the caseworker about their family. They all appeared well-cared-for. None of them had ever been assessed for mental health treatment or counseling. None of them had ever seen their mother smoking marihuana or under the influence of any drug or alcohol.
The caseworker first interviewed the nine year old child. He reported that his family had just moved to New York. He said that his dad stayed behind in the old house when they moved. The caseworker noted that he was wearing a white shirt and blue pants. His daily routine includes eating breakfast and getting ready for school. He said that his mother or grandmother take him to school. After school he does his homework, eats his snack, watches television and eats dinner. He said that he has fun with his brothers and sisters and that they go out and watches movies and play games. He said his mother or his grandmother also take them out sometimes to do different things. When he misbehaves his mother does not let him watch television or sometimes she doesn’t give him his snack. He said that he also sometimes gets sent to his room. He reported that he likes school and that he knows how to write his name.
The caseworker asked him if he ever saw his mother smoking and he said no. She also asked him if he was looking forward to his baby brother coming home and he said yes with a big smile. He took the caseworker to see his room and explained that he shared the room with his brother.
The caseworker also spoke with the eight year old child. She also reported that her family had just moved to New York. She said that all of her family members get along good. Her mother and grandmother take them out and they do stuff. She said they watch a lot of movies, play and watch television. She took the caseworker to her room and showed her what she and her sister do during their spare time. She also said that when she misbehaves her mother does not give her a snack and she does not get in trouble very often. She said that her mother does not hit her. She reported that she liked their new home because the girls had their own room and because they were close to school. She said that she liked school and that her favorite subjects were math and art.
In response to the caseworker’s questioning, she said that she never saw her mother smoking. She said that she knows what drugs are and she knows they are bad for any person. She was excited about her baby brother and was looking forward to him coming home from the hospital.
The caseworker also interviewed the 13 year old child. He reported that his family had just moved to New York and his dad still lived in Washington, D.C. He said that he hoped he would be able to go and visit his father for the holidays. He said that his older sister was living with their father. He reported that his sister came with them when they first moved to New York City.
She only stayed a little while and that she then returned to Washington. He said that he liked living in Washington, D.C. better because they had more space at their old house and that he also had more friends there. According to the caseworker, he appeared well-cared-for.
He also described his daily routine. He said that he shared a room with his brother. He said that he gets up and gets ready for school. He said that after school, he does his homework. He said that he then watches television until it is time to eat dinner. He said that he spends most of his time reading because he likes to read. He watches movies with his brother and sisters and they also go out sometimes to do things with their mother. He said that he helps the other children with their homework when they need it. He likes school. He said that the schools in New York City are more advanced than the schools in Washington, D.C. He said everything he had been learning in his old school was already known to the children in New York City. He does not get in trouble very often. When he does, he said that he gets sent to his room for a while and his mother does not hit the children. In response to questioning, he said that he never saw his mother smoking or using drugs. When asked whether his mother drank, he said that he didn’t know.
The respondent mother testified that prior to the filing of the petition she spent periods of time in New York City and in Washington, D.C. She testified that she was a minister and that she was registered in Washington, D.C. She testified that until 2009, the maternal grandmother resided in Washington, D.C. and that she was the children’s primary caretaker. She testified that things began to change in 2009 when respondent’s father, who lived in New York City, became ill. She testified that her mother then began spending longer periods of time in New York caring for him until he died. Her mother eventually found an apartment in the Bronx and the children moved to New York City as well. The mother testified that she continued to travel between New York City and Washington, D.C. until the birth of the baby.
The mother testified that she occasionally used marijuana on holidays and during prayer. She testified that she did not smoke marijuana but that she drank it in tea or ingested it orally in the form of a paste. She testified that she started doing so approximately three years ago. She had ingested marijuana approximately two weeks before the baby was born. She had never used or had been under the influence of marijuana when she is with the children.
At the conclusion of ACS’s direct case, the respondent moved to dismiss the petition for failure to establish a legitimate case. The Court reserved the decision on the motion.
The Administration for Children’s Services contends that positive toxicology for marijuana and the respondent mother’s admission to prior marijuana use are sufficient to establish neglect pursuant to Family Court Act. ACS asserts that the mother’s repeated use of marijuana establishes a legitimate case of parental culpability and that it is not rebutted by a showing that the children were never harmed or in danger of harm and were always healthy, well kept, clean and well fed. According to ACS, dismissal of the petition based on its failure to present any specific evidence of actual impairment or imminent danger of such impairment would constitute error as a matter of law.
The mother contends that relying solely on a positive toxicology for a neglect determination fails to make the necessary causative connection to all the surrounding circumstances that may or may not produce impairment or imminent risk of impairment in the newborn child.
Additionally, she asserts that the record is insufficient to establish a legitimate case since no evidence was elicited establishing the quantity, frequency or effect of marijuana use upon her or her ability to care for her children. She emphasizes that she never used or was under the influence of marijuana or any other drug while in the presence of any of her children. She underscores that the older children were in the care of the maternal grandmother during these occasions.
Furthermore, she contends that her occasional oral ingestion of marijuana was insufficient to satisfy the statutory requirements. Specifically, she asserts that her use did not result in a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality. Accordingly, she argues that Family Court Act is inapplicable and since no evidence was adduced establishing actual impairment or imminent risk of impairment to the newborn or any of her other children, dismissal is warranted. The Attorney for the Children supports the respondent mother’s assertions.
Most people, even parents sometimes lose their ability to choose what is right from what would take their problem away even for a moment. Sometimes their actions would make their unfit parents in the eyes of the law but that does not make them love their children less. If you want to fight for your children, consult a Nassau County Family Lawyer together with the Nassau County Criminal Defense Attorney or the Nassau County Criminal Lawyer from Stephen Bilkis and Associates.