June 10, 2013

P&N FAMILY LAW UPDATE: Mother's Pot Smoking Not Enough For Finding Of Neglect

P&N Family Law Update: MOTHER's POT SMOKING NOT ENOUGH FOR FINDING OF NEGLECT. In Matter of William N., a parental neglect proceeding out of Family Court in Brooklyn, the mother's newborn tested negative for all unlawful substances and alcohol. And there was no evidence that the Mother's positive toxicology for marijuana — or her use of marijuana while she was pregnant with William — caused any physical, mental, or emotional harm to William or put him at risk of such harm. There was no evidence presented that marijuana itself causes any harm to a developing fetus. Nor was there any evidence that other conduct of the mother in addition to or in combination with her use of marijuana placed the child at risk of harm.

Abusive Conduct that served as the basis for a finding of derivative neglect in a termination of parental rights proceeding:

Placing her son in a hot oven as a form of discipline, mother demonstrated a fundamental defect in her understanding of parental duties. In re Jahyalle, 66 AD3d 1019 (2d Dep't 2009);

forcibly feeding a child and then slapping him in the face causing vomiting, a bloody nose, and bruised eye. In re Joshua R., 47 AD3d 465 [1st Dept 2008], lv denied 11 NY3d [2008];

Non-accidental bone fractures suffered by 2-month old supported derivative finding as to other children. Matter of Dutchess County Dept of Social Services [Noreen K.], 242 AD2d 533 [2d Dept 1997];

In re Ramsay M., 17 AD3d 678 [2d Dept. 2005][the sexual abuse of one child was sufficient to establish such a flawed understanding of parental responsibility as to create a risk of harm to other children in his care];

In Cory, S., 70 AD3d 1321 [4th Dept 2010][allowing her daughter to be sexually abused by her adult son sufficient to establish derivative neglect];

Matter of Eli G., 189 AD2d 764 [2d Dept. 1993] [repeated beating of child with an electric cord];

Matter of Pierre M., 239 AD2d 262 [1st Dept 1997] [hitting child in the head with a wooden table leg with nail protruding].

The William N. case is found at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_23181.htm

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