SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1055 

CAF 11-01399 

PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ. 

 

IN THE MATTER OF SAMAJ B. 

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MONROE COUNTY DEPARTMENT OF HUMAN SERVICES, MEMORANDUM AND ORDER

PETITIONER-RESPONDENT; 

 

TOWANDA H.-B., RESPONDENT-APPELLANT, 

AND WADE B., RESPONDENT. 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF

COUNSEL), FOR RESPONDENT-APPELLANT.

WILLIAM K. TAYLOR, COUNTY ATTORNEY, ROCHESTER (CAROL L. EISENMAN OF

COUNSEL), FOR PETITIONER-RESPONDENT. 

KIMBERLY WHITE WEISBECK, ATTORNEY FOR THE CHILD, ROCHESTER, FOR SAMAJ

B. 

 

Appeal from an order of the Family Court, Monroe County (Gail A.

Donofrio, J.), entered June 30, 2011 in a proceeding pursuant to

Family Court Act article 10. The order, among other things, adjudged

that respondent Towanda H.-B. had neglected the subject child. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Respondent mother appeals from an order adjudging

her child to be neglected. We reject the mother’s contention that

petitioner failed to prove by a preponderance of the evidence that the

subject child was neglected. Pursuant to Family Court Act § 1046 (a)

(iii), “proof that a person repeatedly misuses a drug or drugs or

alcoholic beverages, 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 except that such

drug or alcoholic beverage misuse shall not be prima facie evidence of

neglect when such person is voluntarily and regularly participating in

a recognized rehabilitative program.” Thus, “neglect may in some

circumstances be presumed if the parent chronically and persistently

misuses alcohol and drugs which, in turn, substantially impairs his or

her judgment while [the] child is entrusted to his or her care”

(Matter of Chassidy CC. [Andrew CC.], 84 AD3d 1448, 1449; see Matter
-2- 1055 

CAF 11-01399 

of Arthur S. [Rose S.], 68 AD3d 1123, 1123-1124). “In other words,

‘[t]he presumption contained in Family [Court] Act § 1046 (a) (iii)

operates to eliminate a requirement of specific parental conduct

vis-a-vis the child and neither actual impairment nor specific risk of

impairment need be established’ ” (Matter of Paolo W., 56 AD3d 966,

967, lv dismissed 12 NY3d 747). 

Here, petitioner met its burden of proof by establishing that the

mother admittedly used the drug Suboxone on numerous occasions; that

she purchased the drug on the street whenever she was able; and that

she was prostituting herself in order to obtain money to purchase the

drug. Additionally, the mother failed to rebut the presumption

created by Family Court Act § 1046 (a) (iii). Although the mother

contends that petitioner failed to establish that Suboxone is a “drug”

within the meaning of section 1012 (d), “[t]hat contention . . . is

not preserved for our review inasmuch as the [mother] failed to move

to dismiss the petition on that ground” (Matter of Lydia C. [Albert

C.], 89 AD3d 1434, 1435-1436). 

Based on our determination, we see no need to address the

mother’s remaining challenges to the sufficiency of petitioner’s

proof. We reject the mother’s final contention that Family Court

erred by admitting in evidence an intake report filed with the Office

of Children and Family Services. That report was admissible pursuant

to Family Court Act § 1046 (a) (v) inasmuch as the person making the

report was a police officer, who is a mandated reporter under Social

Services Law § 413 (1) (a) (see Matter of Lauryn H. [William A.], 73

AD3d 1175, 1177; Matter of Michael G., 300 AD2d 1144, 1145; Matter of

Shawn P., 266 AD2d 907, 908, lv denied 94 NY2d 760). 

Entered: September 28, 2012 Frances E. Cafarell

Clerk of the Court