IN THE MATTER OF BROOKLYN S. ONONDAGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PETITIONER-RESPONDENT; STAFANIA Q., RESPONDENT, AND DEVIN S., RESPONDENT-APPELLANT.
& J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER
OF COUNSEL), FOR RESPONDENT-APPELLANT.
A. DURR, COUNTY ATTORNEY, SYRACUSE (CATHERINE Z. GILMORE OF
COUNSEL), FOR PETITIONER-RESPONDENT.
ELIZABETH SCHENCK, ATTORNEY FOR THE CHILD, SYRACUSE.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND
from an order of the Family Court, Onondaga County (Michele
Pirro Bailey, J.), entered September 4, 2015 in a proceeding
pursuant to Family Court Act article 10. The order, inter
alia, determined that respondent Devin S. neglected the
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Respondent father appeals from an order adjudging that he
neglected his child pursuant to Family Court Act article 10.
Contrary to the father's contention, Family Court's
finding that he neglected his child is supported by a
preponderance of the evidence (see Family Ct Act § 1046
[b] [i]). According to the undisputed evidence, the father
abused illicit substances, including heroin. Generally, such
evidence would constitute "prima facie evidence that a
child of or who is the legal responsibility of [the father]
is a neglected child" (§ 1046 [a] [iii]). A parent
may, however, rebut the presumption of neglect where the
parent establishes that he or she "is voluntarily and
regularly participating in a recognized rehabilitative
program" (id. [emphasis added]). "[T]he
issue of whether [a parent] was voluntarily and regularly
participating' in [a treatment] program is a factual
one" (Matter of Keira O., 44 A.D.3d 668, 670). Here,
although the evidence established that the father had
voluntarily begun a rehabilitative treatment program,
"the evidence does not support a finding that [he] was .
. . regularly participating in [that] program" (Matter
of Luis B., 302 A.D.2d 379, 379). Rather, the evidence
established that he attended only a third of his
appointments. Moreover, as the court correctly found, the
fact that the father "tested positive for drug use while
participating in the program . . . establish[es] imminent
risk to the child[ ]'s physical, mental and emotional
condition" (Matter of Messiah T. [Karen S.], 94 A.D.3d
566, 566; see Matter of Brandon R. [James U.], 114 A.D.3d
1028, 1029; see generally Keira O., 44 A.D.3d at 670).
addition, the finding of neglect is supported by evidence
that "the father was aware of the mother's drug use
during the time when she was responsible for the child's
care, and that he failed to intervene" (Matter of Sadiq
H. [Karl H.], 81 A.D.3d 647, 648). The child, who was born
with a positive toxicology for opiates, remained hospitalized
for "neonatal abstinence syndrome." During that
time, the child was to be weaned off the opiates by morphine
management. Despite medical intervention, however, the
child's condition worsened, causing medical professionals
to suspect that the mother, who was breastfeeding the child,
was still using illicit substances. A sample of the
mother's breast milk tested positive for morphine,
codeine, and heroin metabolites. When presented with the
results of the testing, the father admitted that the mother
had "gone on a bender" the weekend before. Inasmuch
as a finding of neglect has been supported where a mother has
been observed breastfeeding a child while having a high blood
alcohol level (see Matter of Maranda LaP., 23 A.D.3d 221,
222; Matter of W. H., 158 Misc.2d 788, 790), we conclude that
the father's failure to intervene to prevent the mother
from nursing the child is further evidence of neglect (see
Sadiq H., 81 A.D.3d at 648).
father further contends that the court erred in admitting in
evidence hospital records that allegedly contained
inadmissible hearsay and in permitting a witness to testify
based on that inadmissible hearsay. The father's
objection to the testimonial evidence was sustained, and the
father did not make any further hearsay objections. We thus
conclude that he did not preserve his contention that any
additional testimony from that witness constituted
inadmissible hearsay (see Matter of Britiny U. [Tara S.], 124
A.D.3d 964, 965). Moreover, the hospital records were
admitted without objection, and thus any challenge to the
admission of those records is not preserved for our review
(see Matter of Cory S. [Terry W.], 70 A.D.3d 1321, 1322). In
any event, even if the court erred in admitting the alleged
hearsay evidence, we conclude that the error is harmless
inasmuch as "the record ...