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March 01, 2013

Child in Relatives’ Care Was Not Dependent Based on Mother's Drug Use and Homelessness

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re Jeffrey M., 2013 WL 363098 (N.Y. App. Div.).

While mother lived in unsafe conditions herself and used illegal drugs, and where child occasionally visited her, trial court properly dismissed petition absent evidence that child was harmed physically or mentally from the visits or that he had been exposed to the drug use.

A report was received regarding the child due to his mother’s alleged use of illegal drugs. The agency investigated and found the mother squatting in an abandoned building. She admitted to using cocaine and marijuana and supporting herself by panhandling and prostitution. She reported that she had been living there approximately a year since she became ill with lupus and lost her apartment and her son had lived with his aunt and grandmother during that time. Her son did visit her occasionally at the abandoned building. She claimed she had never used or was under the influence of drugs around him.

The caseworker interviewed the child, his aunt, and grandmother. They confirmed the mother’s account. They also stated that the son was doing well in their care and at school.

A petition was filed alleging that the child was dependent because of the mother’s use of drugs and lack of substance abuse treatment, lack of safe housing, and general failure to provide for his needs.

The family court dismissed the petition, finding the agency had not met its burden to show the child was neglected. The agency appealed the decision to the Appellate Division of the New York Supreme Court.

The Appellate Division noted that to be found dependent the petitioner has the burden to show by a preponderance of the evidence that the child’s physical, mental or emotional condition is impaired or is in imminent danger of being impaired. Further, state statute provides a specific substance abuse ground which indicates that a prima facie case of neglect is shown by proof that a person responsible for the care of a child repeatedly misuses a drug or alcohol to intoxication. The statute provides an exception if the person is participating in a rehabilitation program.

The Appellate Division found the mother’s living conditions were not suitable. However, no impairment of the child’s health was shown by his occasional exposure to the mother’s living conditions. In fact the evidence showed he was doing well with his relatives. Further, no prima facie case was made as to the substance abuse ground as the caseworker’s investigation did not reveal any testimony indicating the mother ever used drugs or was intoxicated in the child’s presence.

Based on the above, the Appellate Division of the New York Supreme Court affirmed the trial court’s decision to dismiss the petition.