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

365
CAF 15-01084
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF BABY B.W., ALSO KNOWN AS
RALEAK H.
--------------------------------------------
ONEIDA COUNTY DEPARTMENT OF SOCIAL SERVICES,       MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

TRACY B.H., RESPONDENT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT.

DENISE J. MORGAN, UTICA, FOR PETITIONER-RESPONDENT.

JOHN G. KOSLOSKY, ATTORNEY FOR THE CHILD, UTICA.


     Appeal from an order of the Family Court, Oneida County (James R.
Griffith, J.), entered July 13, 2015 in a proceeding pursuant to
Family Court Act article 10. The order, inter alia, determined that
respondent had neglected the subject child.

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

     Memorandum: Respondent father appeals from an order adjudicating
his child to be neglected based upon the father’s illegal drug use
simultaneously with the mother’s illegal drug use during the
pregnancy. Contrary to the father’s contention, petitioner met its
burden of establishing by a preponderance of the evidence that the
child was neglected (see generally Family Ct Act § 1046 [b] [i]). “It
is well established that ‘a finding of neglect may be appropriate even
when a child has not been actually impaired, in order to protect that
child and prevent impairment’ ” (Matter of Lavountae A., 57 AD3d 1382,
1382, affd 12 NY3d 832; see Matter of Serenity P. [Shameka P.], 74
AD3d 1855, 1855-1856), and that “[a] single incident where the
parent’s judgment was strongly impaired and the child exposed to a
risk of substantial harm can sustain a finding of neglect” (Serenity
P., 74 AD3d at 1856 [internal quotation marks omitted]). Here, the
child was born with a positive toxicology for crack cocaine and
marihuana and, based upon the testimony adduced at the hearing, Family
Court properly found that the father’s drug use simultaneously with
the mother’s use contributed to the mother’s use of illegal drugs,
which was harmful to the child. The positive toxicology, together
with the father’s substance abuse history, his failure to submit to
drug screening as requested, and his mental health issues, for which
he fails to take his prescribed medication and fails to attend mental
                                 -2-                           365
                                                         CAF 15-01084

health appointments, supports the finding of neglect on the ground
that the child was placed in imminent danger (see Matter of Nassau
County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79). To the
extent that the positive toxicology 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 in part on that finding 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; see Matter
of Anthony L. [Lisa P.], 144 AD3d 1690, 1692, lv denied 28 NY3d 914).
Contrary to the father’s further contention, the court was entitled to
draw “ ‘the strongest inference [against him] that the opposing
evidence permits’ based on [his] failure to testify at the
fact-finding hearing” (Serenity P., 74 AD3d at 1855; see Denise J., 87
NY2d at 79; Lavountae A., 57 AD3d at 1382).




Entered:   March 31, 2017                      Frances E. Cafarell
                                               Clerk of the Court
