SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1071 

CAF 14-01933 

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ. 

 

IN THE MATTER OF ANTHONY L., JR. 

--------------------------------------------- 

STEUBEN COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER

PETITIONER-RESPONDENT; 

 

LISA P., RESPONDENT-APPELLANT, 

AND ANTHONY L., RESPONDENT. 

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR

RESPONDENT-APPELLANT. 

JESSICA M. PEASLEE, BATH, FOR PETITIONER-RESPONDENT. 

VIVIAN CLARA STRACHE, ATTORNEY FOR THE CHILD, BATH. 

 

Appeal from an order of the Family Court, Steuben County

(Marianne Furfure, A.J.), entered October 1, 2014 in a proceeding

pursuant to Family Court Act article 10. The order, among other

things, adjudged that respondent Lisa P. had neglected the subject

child. 

It is hereby ORDERED that said appeal from the order insofar as

it concerns disposition is unanimously dismissed and the order is

affirmed without costs. 

Memorandum: In this neglect proceeding pursuant to Family Court

Act article 10, respondent mother appeals from an order of disposition

that continued the placement of the subject child in the care and

custody of petitioner, Steuben County Department of Social Services,

until the completion of the next permanency hearing in October 2014. 

Although the mother’s challenge to the disposition is moot inasmuch as

it is undisputed that superseding permanency orders have since been

entered (see Matter of Alexander M. [Michael M.], 83 AD3d 1400, 1401,

lv denied 17 NY3d 704; see generally Matter of Kadyn J. [Kelly M.H.],

109 AD3d 1158, 1161), her appeal also brings up for review the order

of fact-finding determining that she neglected the child (see Matter

of Bradley M.M. [Michael M.—Cindy M.], 98 AD3d 1257, 1258). 

We reject the mother’s contention that the evidence is legally

insufficient to establish neglect. Family Court Act § 1046 (a) (iii)

provides, with an exception not relevant here, that “proof that a

person repeatedly misuses a drug or drugs” to the extent that such

misuse “has or would ordinarily have the effect of producing in the

user thereof,” inter alia, a substantial state of stupor or
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CAF 14-01933 

intoxication, or a substantial impairment of judgment, is “prima facie

evidence that a child of . . . such person is a neglected child.” The

statute thus creates a presumption of neglect in cases of repeated

drug misuse, which eliminates the need for proof that the respondent’s

conduct resulted in at least an imminent danger of impairment to the

child’s physical, mental, or emotional condition (see Matter of Samaj

B. [Towanda H.-B.—Wade B.], 98 AD3d 1312, 1313; Matter of Nasiim W.

[Keala M.], 88 AD3d 452, 453; cf. Family Ct Act § 1012 [f] [i]).

Here, we agree with petitioner and the Attorney for the Child

that the evidence at the fact-finding hearing established a prima

facie case of neglect under Family Court Act § 1046 (a) (iii) based on

the mother’s misuse of prescription medication (see Matter of Madison

PP. [Tina QQ.], 88 AD3d 1102, 1103, lv denied 18 NY3d 802; see

generally Samaj B., 98 AD3d at 1313). In particular, there was

evidence that the mother had been prescribed, among other things,

morphine for fibromyalgia; that she admitted to a caseworker that she

“had been taking more than prescribed”; that she often slurred her

speech as though intoxicated in conversations with petitioner’s

employees; that she fell asleep during the afternoon at a time when

the two-year-old child was awake and she was his sole caretaker; that

the child’s father did not believe the child to be safe alone with her

overnight; and that she once bought and smoked marihuana to deal with

the effects of morphine withdrawal. We note that Family Court

declined to credit the mother’s testimony “to any degree,” and that

its credibility determinations are entitled to great deference (see

Matter of Holly B. [Scott B.], 117 AD3d 1592, 1592). 

To the extent that the presumption set forth in Family Court Act

§ 1046 (a) (iii) may not have been the basis for the court’s finding

of neglect, we conclude that we are not precluded from affirming the

order based on that presumption inasmuch as “the authority of this

Court to review the facts is as broad as that of Family Court” (Matter

of David R., 39 AD3d 1187, 1188). In view of our determination, we do

not address the mother’s remaining challenges to the sufficiency of

petitioner’s proof.

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court