Court Cases by New YorkPeople v. Bell
172 Misc. 2d 25, 656 N.Y.S. 2d 162 (1997)
Bell was convicted of a number of crimes, including first degree murder. Following an evidentiary hearing about his background, the trial judge wrote this opinion describing the mitigating factors. The actual sentence imposed is not disclosed in the opinion.
The opinion notes that the information that had been adduced at the sentencing hearing was "significantly more and in greater detail than would ordinarily be available to the sentencing judge." 656 N.Y.S. 2d at 164-65.
A psychologist gave Bell some 14 separate tests to measure his abilities and to determine if he had any neuropsychological impairments. The psychologist concluded that Bell had organic brain damage, probably as a result of FAS, "given his mother's history of alcohol use." The psychologist concluded that that damage, combined with Bell's low intelligence, meant that Bell as "not able to relate appropriately within the norms of society." 656 N.Y.S. 2d at 165.
In the Matter of Natasha Milland
146 Misc. 2d 1, 146 Misc. 2d 1 (Family Ct. N.Y. Cty. 1989)
Natasha was born with FAS. The court holds that the mother is guilty of neglect, even though the mother has never had custody of the child. Natasha was born with severe medical problems, and at all times was in the Neonatal Intensive Care Unit of the hospital. Her mother continued to drink, and the court concluded the mother would be unable to deal safely with the child's precarious physical condition.
The plaintiff agency (unidentified) offered expert testimony that FAS can be caused "either by episodic binge drinking or the regular intake of 2 or 3 ounces of alcohol per day." 146 Misc. 2d at 3. The mother testified she drank 4 ounces every other day while pregnant. 146 Misc. 2d at 6. [Is this 2, 3 or 4 ounces of beer, or whiskey, or the net ounces of pure alcohol in the drinks? The opinion is unclear.]
The mother had been warned that drinking might harm the baby and her own liver; her response was to cut down rather than to totally stop drinking. She explained: "I tried to stop drinking alcohol completely and it couldn't be done . . . . Because its hard . . . . Hard to stop drinking just like that." 146 Misc. 2d at 7.
The court reasoned that because of the severity of the child's medical condition, the child would be in danger if the mother drank. It then concluded that the fact she drank during the pregnancy was evidence she would do so later.
146 Misc. 2d at 7. This assumption of continuity of alcohol use seems inconsistent with Morris v. Dept. of Social and Health Services, 2003 WL 220958 (Wash. App. Div. 1) and with some cases regarding ineffectiveness of counsel, which assert that knowledge that a mother drank (even excessively) at some point in her life is not sufficient to give counsel reason to believe she might have drunk during her pregnancy.
In the Matter of Danielle Smith
128 Misc. 2d 976, 492 N.Y.S. 2d (N.Y. Family Ct. 1985)
The county Department of Social Services brought this action to have Danielle Smith declared a "neglected child." This apparently was a first step toward removing the child, at least temporarily, from the custody of her mother. The action was based solely upon the prenatal conduct of the mother.
During her pregnancy the mother drank 10 alcoholic beverages on an average of 3 or 4 days a week.
The Department urged, first, that Danielle was a neglected child because her mother's drinking had actually caused FAS. The court concluded that there was insufficient evidence that the child actually had FAS.
The Department also argued that Danielle was a neglected child simply because her mother's drinking had created a risk of FAS. The court agreed.
492 N.Y.S. 2d at 334. Under state law creating an imminent danger of impairment was sufficient to support a finding of child neglect.
The court also held that the fetus was a "person" within the meaning of the state Family Court Act.
Walton v. Albany Community Development Agency
279 A.D. 93, 718 N.Y.S. 2d 456 (3rd App. Div. 2001)
This action was brought by the parent of three children allegedly injured by lead based paint in their residence.
The lower court dismissed the claim, reasoning that the children's disabilities might instead have been due to FAS. The appellate court reversed, noting the evidence that the children had indeed had dangerously high levels of lead in their blood. 279 A.D. at 96.
The defendant had offered an affidavit from a neuropsychologist that it is impossible to differentiate the effects of FAS from those of lead exposure. 279 A.D. at 96.