102 Misc. 2d 1 | N.Y.C. Fam. Ct. | 1979
OPINION OF THE COURT
This neglect proceeding was brought by the Commissioner of Social Services pursuant to article 10 of the Family Court Act.
Since birth, "Male” R. has been either in the hospital or, pursuant to the remand orders of the Family Court, in the custody of the Commissioner of Social Services.
The competent, relevant and material evidence
When respondent was admitted to Cumberland Hospital’s obstetrical service on November 25, 1978, respondent stated that during her pregnancy, she used the following medications: cocaine (sporadically since March, 1978), barbiturates (Tuinal) and alcohol.
Because the infant was born suffering from drug withdrawal symptoms, a report of suspected child abuse or maltreatment was filed by Cumberland Hospital.
Respondent’s medical records as well as her testimony at the hearing furnished additional evidence of her excessive barbiturate use. As to the former, in addition to the medical history given by respondent on her admission to Cumberland Hospital’s obstetrical service in November, 1978, respondent’s medical records include a report of respondent’s examination at Cumberland on June 13, 1978. At that time, respondent complained of not being able to "get off” barbiturates and admitted using Tuinal, a barbiturate, at a dosage of three grains, three times daily. As to the latter, although respondent’s testimony at the hearing was, at times, quite confused and incoherent,
Subdivision (f) of section 1012 of the Family Court Act, in pertinent part, states:
" 'Neglected child’ means a child less than eighteen years of age
"(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care * * *
"(B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment; or by using a drug or drugs; or by using alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court”.*11
Under the terms of subdivision (f) of section 1012, a finding of neglect can be based upon either the actual impairment of a child’s physical condition or the imminent danger of such impairment. In the instant case, petitioner contends that the facts established at the hearing support a finding of neglect on both bases. To establish imminent danger of impairment, petitioner relies upon the effect, after the infant’s birth, that
With respect to imminent danger of impairment, when subdivision (f) of section 1012 is read along with section 1046 (subd [a], par [iii]) of the Family Court Act, it is clear that the evidence in this case is sufficient to support a finding of neglect. Section 1046 (subd [a], par [iii]) provides that in any article 10 hearing, "proof that a person repeatedly uses a drug, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child”.
The testimony of respondent as well as that of Ms. Peoples established respondent’s regular and excessive use of the barbiturate Tuinal both before and after the infant’s birth.
Although subdivision (f) of section 1012, if viewed in isolation, arguably could be read to require that the child actually had been under the respondent’s care and supervision prior to the filing of a neglect petition, such reading becomes untenable when subdivision (f) of section 1012 and section 1046 of the Family Court Act are read together. Under section 1046 (subd [a], par [iii]), a prima facie case that a child is neglected is made where a parent has used drugs to the extent set forth in that provision. There is no requirement under section 1046 (subd [a], par [iii]) of proof that respondent in a given case actually was affected by the drug or drugs in the manner stated; proof of the ordinary effects, in light of the use in question, is sufficient.
If, as is clear under section 1046 (subd [a], par [iii]), a prima facie case of neglect can be made, where a child is actually in a parent’s custody, without proof of specific circumstances, it makes little sense to insist on the formality of actual custody simply because of section 1012’s language regarding supervision. Actual physical custody thus adds nothing since even where a respondent had custody the actual conduct of the respondent — apart from the extensiveness of drug use — need not be shown. In either case, the evidentiary rule of section 1046 (subd [a], par [iii]) operates to eliminate a requirement of specific parental conduct vis-á-vis the child; thus neither actual impairment nor actual risk of impairment need be established in cases in which section 1046 (subd [a], par [iii]) of the Family Court Act applies.
Although there is no case law addressing the precise question raised, cases which have applied section 1046 (subd [a], par [i]) of the Family Court Act provide support by analogy for the conclusion that actual custody of the child is not required
Since the evidentiary rule of section 1046 (subd [a], par [iii]) of the Family Court Act, like that of section 1046 (subd [a], par [i]), does not, by its terms, require that actual risk of impairment be established by proof of conduct which occurred while the child was in a respondent’s custody, the language of subdivision (f) of section 1012 does not constitute a barrier to an adjudication of neglect in this case. The evidence adduced having triggered the operation of section 1046 (subd [a], par [iii]), it is sufficient that there would be a substantial risk of impairment if, under the circumstances of this case, the child had been in the respondent’s care. Petitioner thus has established by a preponderance of the competent, relevant and material evidence that respondent’s child is a neglected child within the meaning of article 10 of the Family Court Act.
As was noted above, petitioner also contends that the actual
It is a difficult question whether an adjudication of neglect can be based, at least in some cases, solely upon prenatal maternal conduct which has caused the actual impairment at
A finding of neglect having been made against respondent pursuant to subdivision (a) of section 1051 of the Family Court Act, this matter is set down for a dispositional hearing on December 21, 1979, at 9:30 a.m., Part 7. The Department of Probation is directed to prepare an investigation and report. In addition, a Bureau of Mental Health Services study of respondent is ordered.
On the basis of the evidence adduced at the fact-finding hearing, the court finds that continued removal of the child from respondent’s home is necessary to avoid an imminent risk to his life and health and that there is a substantial probability that the final order of disposition will be an order of placement under section 1055 of the Family Court Act. Accordingly, pursuant to section 1051 of the Family Court Act, remand of the infant to the Commissioner of Social Services is continued pending entry of a final order of disposition.
. The respondent received adequate notice of the proceedings and has been represented by court-appointed counsel. In addition, the child, "Male” R., has been represented by a court-appointed Law Guardian.
. At the commencement of this proceeding in January, 1979, the child was remanded to the care of the Commissioner of Social Services. On January 18, 1979,' respondent’s attorney requested a hearing pursuant to section 1028 of the Family Court Act. Although a section 1028 hearing was scheduled for January 22, 1979, respondent failed to appear. A stayed warrant was issued for respondent, and the case was adjourned to February 23, 1979. On February 23, 1979, respondent appeared, but apparently neither on tho date nor at any subsequent time was the request for a section 1028 hearing rene jd. Between February 23,1979 and June 13, 1979, the case was twice adjourned and the remand of the child continued on consent of all parties.
. Family Ct Act, § 1046, subd (b), par (ii).
. This information is contained in the medical history given by respondent on her admission to the hospital on November 25, 1978.
. The child’s condition at birth, and for some time thereafter, was fully documented in the Cumberland Hospital record.
. The report (form DSS 2221-A), dated November 29, 1978, was admitted in evidence pursuant to sections 413 and 415 of the Social Services Law.
. In her conversation with Ms. Peoples as well as in her testimony at the hearing, respondent denied using alcohol or cocaine.
. In response to a question posed by her attorney on direct examination, respondent stated that she had not been in any drug program prior to the hearing but that she had been to a mental health clinic for her problem. On cross-examination, however, she stated that she was not presently in a drug program, that there was none for her problem, that she had been in one until two or three weeks before the hearing and that she planned to enroll in one "tomorrow.”
. Family Ct Act, § 1046, subd (b), pars (i), (ii).
. No evidence was offered at the hearing to establish respondent’s addiction to or use of cocaine and/or alcohol after the child’s birth.
. A drug, for purposes of article 10 of the Family Court Act is "any substance defined as a controlled substance in section thirty-three hundred six of the public health law”. (Family Ct Act, § 1012, subd [d].) Tuinal contains amobarbital soduim and secobarbital sodium and is a barbiturate (see Physician’s Desk Reference [31st ed], p 1000); it is a controlled substance under section 3306 (schedule III, subd [a], par [1]) of the Public Health Law.
. The hospital records established respondent’s excessive use of Tuinal throughout her pregnancy. In addition, the fact that the infant was born with mild withdrawal symptoms is evidence of respondent’s drug use at least during the latter part of her pregnancy, as well as evidence from which it is not unreasonable to infer continued use of drugs after the infant’s birth. However, such inference as to continued use is not necessary to the decision in this case since other evidence clearly established that respondent’s excessive use of barbiturates continued up to the time of the hearing.
. Family Ct Act, § 1012, subd (f); emphasis supplied.
. Unlike section 1046 (subd [a], par [iii]) of the Family Court Act, section 1046 (subd [a], par [i]) does not expressly address the question of what constitutes a prima facie case. However, section 1046 (subd [a], par [i]) has been held to establish a rebuttable presumption of abuse or neglect. (Matter of Kenya G., 74 Misc 2d 606.) Thus, in Kenya G., even where a newborn infant had actually lived with respondent for a number of months without any evidence of abuse or neglect, the court held — on the basis of evidence of respondent’s prior abusive conduct toward the newborn’s sibling — that a prima facie case had been made out with respect to the newborn infant.
. See, also, Matter of Santos, 71 Misc 2d 789 (newborn infant adjudicated neglected, without specific citation by court to § 1046 [subd (a), par (i)] of the Family Court Act, on the basis of prior adjudication with respect to sibling); Matter of Moran, 14 Misc 2d 630 (newborn infant declared neglected, on basis of prior neglect adjudication as to four siblings, under an earlier version of neglect statute which, however, did not include an evidentiary provision comparable to that contained in § 1046 [subd (a), par (i)] of the Family Court Act.
. See n 12, supra.
. The authorities cited by the court in Matter of Vanessa "F” (supra) do not aid in the resolution of this ambiguity. Apart from referring to a number of provisions in article 10 the court cited only one decision — Matter of "John” Children (61 Misc 2d 347). Matter of "John” Children involved a group of cases raising common questions and issues under a 1969 amendment to the Family Court Act, which amendment, in turn, was repealed by the extensive 1970 revision of article 10. The basic issue in the cases was the constitutionality of the 1969 amendment, insofar as it presumptively mandated removal of custody of children from a parent adjudged to be addicted to narcotics. In two of the consolidated cases, the fact that children had been born with narcotic withdrawal symptoms provided evidence that the mother was actually dependent or in danger of dependency upon narcotics, which dependency under the statute gave rise to a presumption that the children were abused. In the course of discussing the constitutionality of this presumption, the court appeared to focus not on past harm to the infants born with withdrawal symptoms but upon the risk to the infants, apart from these symptoms, that parental addiction creates. In any event, "John” Children, decided as it was under a different version of the statute, and focusing as it did on a different set of issues, is not dispositive of this question.
. The threshold question is whether the neglect statute applies at all to prenatal maternal conduct which results in impairment of the newborn’s condition, or whether, instead, the statute reaches only maternal conduct which occurs after delivery when the child has an existence wholly separate from its mother. Even if, by analogy to developments in the prenatal tort area (see, generally, Prosser, The Law of Torts [4th ed], § 55), it was assumed that injury to the fetus or child in útero, the effects of which come to light after the child is born, could, in some cases, be the basis for a finding of maternal neglect, additional troublesome questions remain. First, since it is clear that a child in útero may be endangered or actually harmed by a broad range of conduct on the part of a pregnant woman, it would appear necessary to limit any application of the neglect statute to prenatal maternal conduct to a narrow and clearly defined class of cases. It may be possible to identify some cases in which it is common knowledge that the maternal conduct in question creates an unreasonable risk of harm to the fetus. However, even a "knew or should have known” standard may prove very difficult to administer. Then, too, there is a question as to whether prenatal maternal conduct which creates risk but does not, in fact, lead to actual harm could be considered the basis for a neglect finding. As was pointed out earlier in this opinion, it is clear that imminent risk of impairment as well as actual impairment is expressly covered by subdivision (f) of section 1012. If, however, subdivision (f) of section 1012 applies to prenatal as well as postnatal maternal conduct, it is questionable whether the creation of unreasonable risk of harm, where no actual harm ensues, could or should be the basis of a neglect proceeding where prenatal maternal conduct is in issue.