Matter of Yisrael R. (Jocelyn R.)

2016 NY Slip Op 8299, 145 A.D.3d 491, 43 N.Y.S.3d 295

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2016
• Docket: 2420 2419
• Status: Published

Opinion

Order of disposition, Family Court, New York County (Clark V. Richardson, J.), entered on or about April 8, 2015, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about November 24, 2014, which found that the respondent mother neglected the subject child, unanimously affirmed, without costs. Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

The Family Court’s finding of neglect is supported by a preponderance of the evidence (see Family Ct Act §§ 1012 [f] [i] [B]; 1046 [b] [i]). The evidence established that respondent incurred positive toxicology results for phencyclidine (PCP) on March 12 and March 31, 2013, in the last trimester of her pregnancy, just before the subject child was born on April 3, 2013, and that she has a prior history of PCP abuse (Matter of Omarion T. [Isha M.], 128 AD3d 583 [1st Dept 2015]). Moreover, she previously failed to successfully complete a drug treatment program, but maintained, after twice testing positive for PCP during pregnancy, that she did not believe drug treatment would benefit her because she did not have a drug problem (Matter of Nasiim W. [Keala M.], 88 AD3d 452 [1st Dept 2011]; see also Matter of Chastity O.C. [Angie O.C.], 136 AD3d 407, 407-408 [1st Dept 2016]). In these circumstances, contrary to respondent’s assertions, “the lack of actual harm to [the child] is irrevelant” (id. at 408; see also Matter of Cruz, 121 AD2d 901 [1st Dept 1986]).

Concur—Mazzarelli, J.P., Friedman, Acosta, Andrias and Moskowitz, JJ.