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DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support a drug-related neglect finding:

We agree with respondents that petitioner failed to establish by a preponderance of the evidence “that [the children's] physical, mental or emotional condition[s have] been impaired or [are] in imminent danger of becoming impaired” (… see Family Ct Act § 1012 [f] [i]). Although the evidence adduced at the fact-finding hearing established that respondents used illicit drugs, the mere use of illicit drugs is insufficient to support a finding of neglect … , and we conclude that petitioner failed to establish the requisite causal nexus between respondents' illicit drug use and the alleged impairment or imminent danger of impairment of the children's physical, mental, or emotional condition … . Petitioner produced no evidence that respondents ever used drugs in the presence of the children … . Moreover, although the younger child suffered two accidents, each of which resulted in a fractured wrist, petitioner offered no evidence that respondents were using drugs or under the influence of drugs at the time the accidents occurred, respondents' innocent explanations for the accidents were uncontroverted at the fact-finding hearing, and there was no evidence of any impairment or imminent danger of impairment to the older child arising from respondents' alleged drug use. We further conclude that petitioner failed to establish a prima facie case of neglect by submitting evidence that respondents used drugs “to the extent that [such use] has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality” (§ 1046 [a] [iii]). Absent from the record was any evidence as to the duration or frequency of respondents' drug use … . Matter of Delanie S. (Jeremy S.), 2018 NY Slip Op 06677, Fourth Dept 10-5-18

FAMILY LAW (DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (FAMILY LAW, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

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