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Family court judge dismisses neglect petition against parents who smoked pot

Kings County Family Court Judge, Ann Elizabeth O'Shea, has issued one of the more important family court decisions to be issued in a long time. The decision was made on May 31 but not released to the public until yesterday. The fifteen page decision dismissed a neglect petition by New York City's Administration for Children's Services (ACS) which had removed a child from his parents' custody two days after birth and sought to declare both mother and father negligent for marijuana use. In at least one instance, Judge O'Shea made a decision on an issue which has never been decided by a judge before.

ACS attempted to prove neglect by the mother on three grounds:

1. Use of marijuana during pregnancy.

2. Failure to Comply With A Prior Order of Disposition.

3. Derivative neglect.

While the mother tested positive for marijuana use and admitted to using it during pregnancy, her baby tested negative and was born healthy.

Citing the Family Court Act, Judge O'Shea said a neglected child is defined "in pertinent part as a child under the age of 18 "(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 . . . to exercise a minimum degree of care . . . (B) in providing the child with proper supervision or guardianship by . . . misusing a drug or drugs.. . ."

O'Shea said that in order for the child to be neglected ACS had to prove by a preponderance of the evidence "not only that the Mother misused a drug or drugs, which is not in dispute, but also that William's physical, mental or emotional condition was impaired or placed in imminent danger of becoming impaired as a result of the Mother's drug use." ACS failed to do that.

Judge O'Shea also said that there was no evidence that the father had used marijuana in the child's presence, then went on to say, "Furthermore, since Petitioner failed to prove that the Mother's use of marijuana impaired William or placed him in imminent risk of impairment, its allegations that the Father neglected William by misusing marijuana or by failing to stop the Mother from smoking marijuana must, a fortiori, fail."

The judge then went on to deal with the remaining two issues used to charge the mother with neglect. The judge dismissed the neglect petition based upon the mother's alleged failure to comply with a prior order of disposition by stating that even though the mother had failed to meet all of the requirements of the order of disposition such as drug-treatment, anger-management, parenting-skills training, etc., by stating "...the response to such failure must be tempered by some consideration of the reasons for the noncompliance. When appropriate, a recalibration of the service plan to ease compliance may be appropriate. In some circumstances, the noncompliance may justify a finding of contempt (FCA § 156). However, unless there is evidence that a failure to comply with an order of disposition resulted in injury to the child or placed him in imminent danger of injury, a finding of neglect based solely on the noncompliance is not warranted." The mother had explained the hardships of meeting the mandates while going through a difficult pregnancy.

The judge then stated that "The petition did not allege and there was no evidence to prove that William suffered any injury or was placed in imminent danger of injury because the Mother did not comply with the order of disposition in [the other child's] case. For these reasons, the allegation that [the baby] was a neglected child as a result of the Mother's failure to comply with that order fails."

ACS had claimed that the mother had derivatively neglected her newborn because she had consented to a neglect finding in a petition concerning another child. Judge O'Shea, however, explains in her decision that consent is not the same as admission of guilt. Consenting to a petition is akin to pleading nolo contendre (no contest) in a criminal court. Admission is akin to pleading guilty in a criminal court. She then stated, "Unlike a guilty plea, a nolo contendere plea is not admissible as evidence of guilt or wrongdoing in any subsequent litigation (4 Wigmore §1066 (4), at 58 (3d ed. 1940, Supp. 1970)." Therefore, a consent agreement in family court cannot be used to establish neglect in a subsequent case.

Judge O'Shea concluded by saying, "More fundamentally, in both criminal cases and Article 10 proceedings, it would appear to be a violation of basic due process principles to permit facts which have never been proved or admitted in one case to be used as evidence of guilt in a subsequent case. Certainly, such consents cannot constitute "proof" required by FCA §1051(a)(i)."

The entire decision can be read here.

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