        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1050
CAF 15-01559
PRESENT: CARNI, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF MATIGAN G. AND TATUMN G.
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ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES,   MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

SARA E.W.-G., RESPONDENT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NANCY FARRELL OF
COUNSEL), FOR RESPONDENT-APPELLANT.

ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL),
FOR PETITIONER-RESPONDENT.

LAURA ESTELA CARDONA, ATTORNEY FOR THE CHILDREN, SYRACUSE.


     Appeal from an order of the Family Court, Onondaga County (Julie
A. Cecile, J.), entered August 11, 2015 in a proceeding pursuant to
Family Court Act article 10. The order, among other things, adjudged
that respondent neglected the subject children.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this proceeding pursuant to Family Court Act
article 10, respondent mother appeals from an order finding her in
neglect of her two youngest children as the result of her mental
illness.

     The mother contends that her mental illness was not causally
related to any actual or potential harm to the children. We reject
that contention. The evidence at the hearing established that the
mother exhibited bizarre paranoid delusions during the late hours of
January 16, 2015, which continued into the early morning of January
17, 2015 (see Matter of Thomas B. [Calla B.], 139 AD3d 1402, 1403).
Specifically, the mother believed she had seen and heard several
intruders in her home, and they had intended to kill her (see Matter
of Kiemiyah M. [Cassiah M.], 137 AD3d 1279, 1280). The mother was
subsequently transported to a psychiatric facility, where she was
diagnosed with bipolar II disorder and tested positive for
amphetamines, cocaine, and cannabinoids. The mother continued to
experience episodes of vivid paranoia after her discharge from the
facility, but she refused to seek additional treatment (see Matter of
Jesse DD., 223 AD2d 929, 931, lv denied 88 NY2d 803).
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                                                         CAF 15-01559

     While there was conflicting testimony whether the subject
children were present during the mother’s episodes of paranoid
delusions, the statements of the mother’s two older children
describing the harmful emotional impact they experienced as a result
of the mother’s behavior during her delusions demonstrated the risks
faced by the subject children should they be similarly exposed to such
behavior. Furthermore, the evidence established that the subject
children had been present during a prior incident in which the mother
called the police with a complaint of footprints outside her home, but
no such footprints were found by the police. We therefore conclude
that the evidence at the hearing established that “the mother engaged
in bizarre and paranoid behavior toward the older child[ren] . . . and
that such behavior took place in the presence of the [subject
children] at times and thereby exposed [them] to a[n imminent] danger”
of their physical, mental or emotional condition becoming impaired
(Thomas B., 139 AD3d at 1403 [internal quotation marks omitted]).

     Moroever, in our view, a reasonable and prudent parent would have
accepted the recommendation to seek additional mental health treatment
under these circumstances (see generally Nicholson v Scoppetta, 3 NY3d
357, 370). The record establishes that the mother’s older children
had been upset by the mother’s previous irrational and impulsive
behavior, the mother continued to experience episodes of vivid
paranoia even after years of treatment with her personal psychiatrist,
and she relapsed immediately after she was discharged from the
psychiatric facility. In addition, the mother repeatedly defended the
substance of her paranoid episodes during these proceedings by
attempting to explain that what she saw and heard was real. We
conclude that the foregoing demonstrates that the mother “displayed a
lack of insight into the effect of her illness on her ability to care
for the [subject] child[ren]” (Matter of Lakiyah M. [Shacora M.], 136
AD3d 424, 425).

     Lastly, although we agree with the mother that the statutory
presumption of neglect for repeated misuse of drugs is inapplicable to
the facts of this case (see Family Ct Act § 1046 [a] [iii]), we
nevertheless conclude that Family Court could properly consider
evidence that the mother voluntarily possessed and used illegal
substances in conjunction with her mental health prescription
medication during the episode of paranoid delusions on January 16,
2015 (see generally Matter of Andrew DeJ. R., 30 AD3d 238, 239), and
that she subsequently told an investigator that she “believed that
other people were administering [drugs] to her so that she would test
positive so that she would appear crazy.”

     Thus, in light of the evidence of the mother’s mental illness,
and “[g]iven the absence of adequate proof as to the [mother’s]
willingness to accept medical treatment, or as to the efficacy of
whatever treatment might exist,” the subject children would be faced
with a “ ‘substantial probability of neglect’ ” should they be
released back to the mother (Matter of Baby Boy E., 187 AD2d 512,
512). We therefore conclude that the court properly determined that
the children were neglected as a result of the mother’s mental illness
(see Thomas B., 139 AD3d at 1403; see generally Nicholson, 3 NY3d at
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                                              CAF 15-01559

368).




Entered:   December 23, 2016         Frances E. Cafarell
                                     Clerk of the Court
