New York Family Law Blog
2012 New York Slip Op 50257
The question before the court is whether an admission and positive toxicology report for marijuana use is enough to establish neglect according to the Family Court Act 1012 (f)(1)(B) or Section 1046 (a)(iii). It is the contention of the Administrator of Children Services (ACS) that it is. The ACS claims that the mother’s use of marijuana establishes a case for parental wrongdoing and that a prima facie case isn’t defended by merely showing that the children weren’t harmed. The ACS said that dismissing the petition because of its failure to prevent any tangible evidence of harm is an error of law.
The mother contends that her infant’s positive toxicology for marijuana is in and of itself insufficient proof. It doesn’t prove that the child was harmed or put in any kind of danger. She claims that relying only on the report fails to make a causative connection to the surrounding circumstances.
The mother also claims that there is no prima facie case since no evidence was offered regarding the effect of that the marijuana use had on her child.
She contends that her ingestion of the oral marijuana does not satisfy the statutory requirements. She never had a “substantial state of stupor or unconsciousness,” intoxication, hallucination, disorientation or incompetence (Family Court Act Section 1046 [a][iii]. She contends that the statute doesn’t apply because there is no evidence showing impairment.
History
The ASC filed a petition against the respondent mother for neglect under the Family Court Act 1012 (f)(1)(b). Five children were living with the mother. The petition contends that the mother didn’t provide supervision or guardianship.
Petitioner’s Case
There were 2 witnesses for the plaintiff. They also submitted numerous medical reports. The reports showed that the baby tested positive for marijuana when he was born.
A caseworker visited the grandmother’s home and found the other 4 children well cared for. Several were interviewed and were reportedly healthy and happy. None of them said they ever saw their mother smoke.
The mother asserts that she is a minister and for family reasons travels between Washington DC and NYC.
The mother said she occasionally used marijuana for prayer or on a holiday. She said she has never been under the influence in front of the kids.
Respondent moved for the case to be dismissed based on lack of evidence.
Respondent’s Case
The respondent submitted various documents including the children’s report cards, statement by expert witnesses and ASC notes.
Based on good school records, ACS withdrew their complaint regarding educational neglect.
The expert witness had a PHD in psychology and neuroscience. He has taught extensively about drug use.
He testified that about the difference between smoking and ingesting THC. Eating THC is highly ineffective and less likely to induce intoxication. He said he could not speak with any certainty on whether ingesting marijuana had any effect on the infant. The mother moved to dismiss the case.
Legal Argument
Legally a neglected child is where a child is in imminent danger as a result of parental failure of exercising a minimum degree of care (Family Court Act 1012 [f][i][B].
Imminent danger must be proven whether physical, emotional or mental (Matter of Nassau County Department of Social Services [Dante v. Denise 87 NY2d 73, 78-79 [1995]. The court focused on serious potential harm to the child.
The statute doesn’t address physical impairment but does go into detail regarding mental impairment, which is attributable to a parent not exercising a minimum degree of care (Family Courts Act 1012 [h]; Nicholson v Scoppetta 3 NY 357, 370-371 [2004].
Actual harm must be readily apparent and proven. Imminent danger is more difficult to prove, and is a separate ground on to which negligence can be found. (Dante M. 87 NY2d at 79). The court also states that potential harm must be near or impending, not just possible (Nicholson v. Scopetta 3 NY 3d 369.
ASC’s attempt to establish a prima facie case was unsuccessful because the mother’s drug use did not qualify to the level mentioned in the statute. ASC failed to submit adequate proof that the respondent was involved in regular drug use that substantially impaired her judgment (Besharov, Practice Commentaries, McKinney’s Con Laws of NY, Book 29A, Family Law Act 1012 [1998 Ed.].
The court ordered that pursuant to Family Court Section 1051 (c), facts sufficient to sustain the petition haven’t been established and the case is dimissed.