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DEFENDANT WAS CONVICTED OF SECOND DEGREE MURDER (DEPRAVED INDIFFERENCE) AND FIRST DEGREE MANSLAUGHTER (RECKLESS) FOR THE DEATH OF A SEVERELY ABUSED CHILD; THE EXTENSIVE DISCUSSIONS OF THE “DEPRAVED INDIFFERENCE” ELEMENT BY THE MAJORITY AND DISSENT ILLUSTRATE THE DIFFICULTY OF PROVING BOTH “DEPRAVITY” AND “INDIFFERENCE” (THIRD DEPT).

The Third Department, affirming defendant’s second degree murder (depraved indifference) and first degree manslaughter (reckless) convictions for the death of a severely abused child, over an comprehensive dissent, determined the facts supported the “depraved indifference” element. The dissent disagreed:

Contrary to defendant’s contentions, the fact that he began immediate life-saving measures on the victim and called his wife to summon medical aid does not dictate a different result. Rather “[t]he People were required to show that defendant had the necessary mens rea of callous indifference when the crime occurred, not at all times thereafter” … . Thus, where the defendant is the one who inflicted the fatal injuries, the sincerity and motivation behind post-injury rescue efforts distill to “implicated credibility questions for the jury to resolve” … . We find no reason to disturb the jury’s finding that defendant’s “belated expressions of concern did not reflect any [genuine] interest in the victim’s welfare” … .

From the dissent:

Ask 12 random people on the street to describe the mental state of someone who stomps on a young child’s stomach so hard that it kills him. Each will say something like, “cruel,” “brutal,” [*9]”monstrous” — maybe even “depraved” … . The jurors here rationally arrived at the same conclusion — and, indeed, “the horrific nature of defendant’s assault of the [victim] was clearly intended to be encompassed within the depraved indifference murder of a child statute” … .

But depravity is not enough. Depraved indifference to human life “is something even worse” … . To prove this rare state of mind, there must be evidence of “wanton cruelty, brutality, or callousness, combined with an utter indifference as to whether the victim lives or dies” … . That combination is not present here. Consequently, defendant’s conviction of depraved indifference murder must be reversed, and that count of the indictment dismissed. People v Greene, 2025 NY Slip Op 06931, Third Dept 12-11-25

Practice Point: “Depraved indifference” is a troublesome concept. How do the People prove both “depravity” and “indifference?” Consult this decision for an in-depth discussion.

 

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HERE SUPREME COURT CORRECTLY REFUSED TO VACATE THE DEFAULT JUDGMENT IN THIS PERSONAL INJURY CASE; BUT THE SECOND DEPARTMENT VACATED THE $385,000 INQUEST-JUDGMENT BECAUSE PLAINTIFF’S TESTIMONY DID NOT SUFFICIENTLY DEMONSTRATE THE EXTENT OF THE INJURIES (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined Supreme Court correctly denied defendant’s motion to vacate a default judgment in a personal injury case because she failed to provide a reasonable excuse. Plaintiff alleged he stepped in a hole on defendant’s property, twisted his foot and fell. But the $385,000 damages judgment was vacated by the Second Department because plaintiff’s testimony at the inquest was deemed insufficient to demonstrate the extent of the injuries. A new inquest was ordered:

… [A]lthough this Court is not relieving the defendant of her default, “[a]n unwarranted and excessive award after inquest will not be sustained, as to do otherwise ‘would be tantamount to granting the plaintiffs an open season at the expense of a defaulting defendant'” … . Here, the plaintiff’s vague testimony at the inquest was insufficient to determine to what extent the plaintiff’s injuries were attributable to the subject accident and, therefore, whether the amount awarded was warranted. Thus, under the circumstances of this case, the Supreme Court should have granted that branch of the defendant’s motion which was to vacate the judgment, and we remit the matter to the Supreme Court, Nassau County, for a new inquest on the issue of damages, and for the entry of an appropriate amended judgment thereafter … . Albano v Roehrig, 2025 NY Slip Op 06839, Second Dept 12-10-25

Practice Point: Despite losing a motion to vacate a default judgment, a defendant may still successfully move to vacate a judgment awarded after an inquest on the ground the evidence offered at the inquest did not sufficiently demonstrate the extent of the plaintiff’s injuries.

 

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HERE, IN SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST A CITY HOSPITAL ALLEGING MEDICAL MALPRACTICE, THE PETITIONER DID NOT SUBMIT THE MEDICAL RECORDS; THEREFORE THE PETITIONER DID NOT SHOW THAT THE HOSPITAL HAD TIMELY KNOWLEDGE OF THE CLAIM; LEAVE TO FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and dismissing the action, determined the petition for leave to file a late notice of claim, alleging medical malpractice, negligence and violation of the Public Health Law on behalf of decedent, should not have been granted. The petitioner did not establish that the city had timely knowledge of the claim, which is the most important criterium for allowing late notice:

​”Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff” … . The petitioner’s “failure to submit evidence of the contents of the alleged records is fatal to [her] argument that the [appellant] acquired actual knowledge from the existence of such records” … . Additionally, there is no suggestion in the record that the appellant refused to produce the medical records or that the petitioner sought to compel the appellant to produce any papers necessary to the determination of the petition pursuant to CPLR 409(a) … . Matter of Giustra v New York City Health & Hosps. Corp., 2025 NY Slip Op 06862, Second Dept 12-10-25

Practice Point: The most important criterium for leave to file a late notice of claim is evidence the city had timely knowledge of the claim. Medical records, depending on their contents, can (but do not necessarily) demonstrate timely knowledge of the claim. Here petitioner did not submit the medical records and therefore did not even attempt to demonstrate the city’s timely knowledge of the nature of the medical malpractice claim. The mere existence of medical records is not enough.​

 

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TAKING THE APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE FIRST DEPARTMENT DETERMINED THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DID NOT DEMONSTRATE THE APPPELLANT JUVENILE WAS PROPERLY TRANSFERRED FROM A NONSECURE TO A SECURE FACILITY; THE JUVENILE’S MISBEHAVIOR WAS NOT THAT SERIOUS; ACS DID NOT DEMONSTRATE IT HAD EXHAUSTED LESS SEVERE ALTERNATIVES (FIRST DEPT).

The First Department, reversing Family Court, considering an otherwise moot appeal because the issue recurs and juveniles are only placed for a limited amount of time, determined the Administration for Children’s Services (ACS) did not demonstrate the need to place the appellant (juvenile) in a secure facility:

Under Family Court Act § 355.1(2), Family Court can modify a dispositional order “upon a showing of a substantial change of circumstances” by the agency, to place a youth in a secure facility, if “the respondent has demonstrated by a pattern of behavior that he or she needs a more structured setting and the social services district has considered the appropriateness and availability of a transfer to an alternative non-secure or limited secure facility” … . Notably, behaviors meriting a modification include “disruptions in facility programs; continuously and maliciously destroying property; or, repeatedly committing or inciting other youth to commit assaultive or destructive acts” … .

Here, ACS alleged that two incidents where appellant went absent without consent (AWOC) over the course of two months constituted a “pattern of behavior” warranting his placement in a secure facility. The record reflects that, during the first AWOC incident …, appellant “darted out the front door and ran” from a non-secure facility. During the second incident …, appellant fled through a damaged door at a limited secure facility after other youths broke the door while trying to escape. While this behavior is problematic, it simply does not rise to the level of seriousness reflected in the examples provided in the statute, i.e. “continuously and maliciously destroying property” or “repeatedly committing or inciting other youth to commit assaultive or destructive acts” … .

ACS also failed to show that it first “considered the appropriateness and availability of a transfer to an alternative non-secure or limited secure facility” before seeking modification as it was required to do … . According to ACS policies, “[m]odifications must be considered as an option only when all efforts to avoid the modification have been exhausted.” … ACS did not present any affirmations or provide any witness testimony regarding the limited secure facility’s ability to address appellant’s behavior … . Matter of J.D., 2025 NY Slip Op 06807, First Dept 12-9-25

Practice Point: Consult this decision for insight into the level of a juvenile’s misbehavior which will justify placement in a secure facility, as well as the less severe alternatives which must be tried or demonstrated ineffective first.

 

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ALTHOUGH THE DEFENSE IN THIS MURDER CASE WAS BASED ON THE LACK OF EVIDENCE THAT DEFENDANT WAS THE ASSAILANT, THE DEFENDANT WAS STILL ENTITLED TO A JUSTIFICATION-DEFENSE JURY-INSTRUCTION; THE DENIAL OF THE REQUEST FOR THE JUSTIFICATION-DEFENSE JURY CHARGE WAS REVERSIBLE ERROR; IN ADDITION, THE TRIAL COURT VIOLATED CVIL RIGHTS LAW 52 BY ALLOWING THE MEDIA TO RECORD TESTIMONIAL PORTIONS OF THE TRIAL (THIRD DEPT).

The Third Department, reversing defendant’s murder conviction and ordering a new trial, determined the defense request for a justification-defense jury-instruction should have been granted. The defendant and the victim got into a bar fight after defendant called the victim names. The victim, who was larger than the defendant, initially knocked defendant down. After the defendant got up, the victim was stabbed. The knife which stabbed the victim was not found It was not clear who was the initial aggressor in the fight. And there was evidence the victim may have had a knife. The Third Department noted that the court erred when it allowed audiovisual coverage of the testimonial portion of the trial (Civil Rights Law 52):

“A justification charge must be given if there is any reasonable view of the evidence, when it is considered in the light most favorable to the defendant, that would allow the jury to conclude that the defendant’s actions were justified” … . In order “for a defendant to be entitled to a justification charge with respect to the use of deadly physical force, the record must contain evidence that the defendant reasonably believed that the victim was using or was about to use deadly physical force and that the defendant could not safely retreat” … . A charge on the defense of justification remains appropriate where a defendant pursued other defense strategies at trial, including that he or she did not intend to cause the victim’s death … ,was not present or was not the assailant … .The failure to provide a justification charge under such circumstances constitutes reversible error warranting a new trial … .

Here, the evidence in the record fails to indicate who was the initial aggressor with respect to the use of physical force, but rather suggests both individuals started fighting immediately after someone — presumably defendant — yelled derogatory remarks at the victim. It was unrefuted that the victim was larger than defendant and had gained the upper hand during the fight, knocking defendant down with several blows. The further question is whether or not defendant was the initial aggressor with respect to deadly physical force … . … [T]he police recovered an open folding knife on the patio adjacent the picnic tables where the altercation began, near a pool of blood. … [A] reasoned view of the evidence is that the victim had unfolded the knife prior to being stabbed by defendant. * * * [W]e believe that there was a reasonable view of the evidence which would permit the jury to conclude that defendant’s conduct was justified … . People v Mack, 2025 NY Slip Op 06757, Third Dept 12-4-25

Practice Point: No matter what the defense strategy is, a defendant is entitled to a justification-defense jury instruction if a reasonable view of the evidence would support finding defendant’s conduct justified.

Practice Point: Civil Rights Law 52 prohibits audiovisual coverage of the testimonial portion of a criminal trial.

 

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SUPREME COURT SHOULD NOT HAVE RELIED ON THE “LOCALITY RULE” TO DISMISS THE OPINION OF PLAINTIFF’S EXPERT BECAUSE THE EXPERT PRACTICED MEDICINE IN ANOTHER STATE: WHEN AN EXPERT TESTIFIES ABOUT STANDARDS APPLICABLE THROUGHOUT THE UNITED STATES, THE LOCALITY RULE SHOULD NOT BE INVOKED (THIRD DEPT).

The Third Department, reversing Supreme Court in this medical malpractice action, determined plaintiffs’ expert affidavit was not conclusory or speculative and raised triable questions of fact. The Third Department noted that Supreme Court should not have dismissed plaintiffs’ expert’s (Grant’s) opinion on the ground Grant practiced medicine in a different state. Although the “locality rule” has not been set aside, it does not affect the validity of an opinion based on standards applicable throughout the United States:

… [W]e briefly address Supreme Court’s reliance on the fact that Grant practiced medicine in another state to ostensibly dismiss his opinions. Over 125 years ago in Pike v Honsinger (155 NY 201 [1898]), the Court of Appeals promulgated what has become known as the locality rule … . Under this rule, “the prevailing standard of care governing the conduct of medical professionals demands that a doctor exercise that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where the doctor practices” … . While this rule has not been set aside, this Court has indicated that “the development of vastly superior medical schools and postgraduate training, modern communications, the proliferation of medical journals, along with frequent seminars and conferences, have eroded the justification for th[is] rule” … . With the rise of the Internet and the attendant ease with which information is disseminated, this is even more true today. “Thus, where, as here, a medical expert proposes to testify about minimum standards applicable throughout the United States, the locality rule should not be invoked” … . Kosinski v Wladis, 2025 NY Slip Op 06772, Third Dept 12-4-25

Practice Point: In a med mal case, where an expert testifies about standards applicable throughout the United States, the “locality rule” requiring the application of local standards should no longer be invoked. Here plaintiffs’ expert’s opinion was erroneously dismissed because the expert practiced medicine in a different state.

 

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PLAINTIFF TRIPPED OVER A FLOOR TO CEILING WOODEN BRACE IN A HOME WHICH WAS UNDER CONSTRUCTION; THE THIRD DEPARTMENT HELD THAT THE OPEN AND OBVIOUS NATURE OF THE BRACE DID NOT WARRANT THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANTS ON THE LABOR LAW 200 CAUSE OF ACTION (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the open and obvious nature of condition (a wooden brace over which plaintiff tripped) did not warrant summary judgment in defendants’ favor on the Labor Law 200 cause of action. The home was under construction and the brace ran at a 45 degree angle from the floor to the ceiling in the middle of the kitchen:

… [D]efendants failed to meet their prima facie burden as questions of fact remain as to whether defendants maintained the worksite in a reasonably safe condition, precluding summary judgment. … [D]efendants presented an affidavit of David Rubin, a former CEO of a general contracting firm with 45 years of experience in the field of general construction. Rubin reviewed, among other things, photographs of the worksite and observed there were two-by-four wooden braces set up throughout the home that were “necessary and fundamental to the construction process.” He explained that the brace plaintiff tripped over was “conspicuous and not hidden from sight, and indeed, plaintiff had already seen that particular brace prior to his incident.” Ultimately, he opined that neither the use nor the placement of the brace was negligent as it was necessary to support the structure at that stage of construction.

Although Rubin placed great emphasis on the fact that the brace was open and obvious and that plaintiff saw it prior to his fall, this Court has repeatedly held that “the open and obvious nature of an allegedly dangerous condition does not, standing alone, necessarily obviate a [general contractor’s] duty to maintain [the worksite] in a reasonably safe condition” … . Rather, the readily observable nature of the wooden brace “merely negated any duty that defendant[s] owed plaintiff to warn of [the] potentially dangerous condition[ ]” … . Nor does plaintiff’s testimony at his deposition that he saw the wooden brace prior to his fall defeat his claim as his “previous knowledge of a defective condition, if any, may be considered by a jury in assessing comparative negligence” … . Accordingly, “[v]iewing the evidence in the light most favorable to plaintiff as the nonmoving party, a question of fact remains as to whether defendants’ [worksite was] maintained in a reasonably safe condition. That question is for the trier of fact to resolve” … . Sullivan v Flynn, 2025 NY Slip Op 06773, Third Dept 12-4-25

Practice Point: Here the Third Department noted that a condition which is open and obvious and of which the plaintiff was aware before he was injured is not a sufficient ground for the award of summary judgment on a Labor Law 200 cause of action. Here a wooden floor to ceiling brace in the middle of the kitchen in a house under construction, over which plaintiff tripped, was deemed to raise a question of fact.

 

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THE POLICE STARTED FOLLOWING DEFENDANT BECAUSE THEY THOUGHT HE CROSSED THE STREET TO AVOID THEM; THE POLICE DID NOT HAVE GROUNDS FOR A COMMON-LAW INQUIRY AND NOTHING DEFENDANT DID AFTER THE STREET STOP JUSTIFIED THE LEVEL THREE SEIZURE OF THE DEFENDANT; THE WEAPON FOUND IN DEFENDANT’S POCKET SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined what the police saw did not warrant a common-law inquiry on the street and the subsequent level three seizure of the defendant was not justified. Apparently the police felt defendant crossed the street to avoid them, the police followed him and saw him pass something to a woman, after defendant was stopped he was told to take his hand out of his jacket pocket and did so, the officer testified a heavy object was in the jacket pocket, the defendant was then handcuffed and a handgun was found in the pocket:

Defendant’s suppression motion should have been granted. Although we decline to disturb the court’s credibility determinations … , notwithstanding our concerns about discrepancies between the officers’ testimony and what is shown in the body-worn camera footage, the initial inquiry and subsequent seizure were still unjustified. Even crediting the officers’ testimony that their suspicion was aroused when defendant and the woman crossed the street to avoid their patrol car, and then they later observed him pass a small object to the woman, the totality of the circumstances did not give rise to the level of suspicion required for a common-law inquiry … . Neither officer could identify what object was passed from defendant to the woman — one testified that “it could have been anything” — nor otherwise articulate why, from this innocuous behavior, they had a “founded suspicion that criminality was afoot” to warrant a level two encounter … . The police were not responding to a call, there was ambiguous testimony as to whether the encounter took place in a high crime area, and the woman did not give defendant money in exchange or immediately leave “without any kind social interaction” … .

Similarly, this Court’s review of the record, including the body-worn camera video recording of the encounter, indicates that the police were not justified in their escalation to the level three seizure in restraining defendant’s wrists simply because, after he was detained, and defendant complied with the officers’ request that he show his hands, he turned his body away from one officer, who observed a “shift in weight” in defendant’s jacket pocket … . Even if there had been a bulge in defendant’s pocket, that observation alone does not imply a reasonable conclusion that defendant was armed … . Defendant’s hands were in clear view when the officers seized him, and nothing in the record indicates that defendant was armed or posed a threat to safety to justify him being frisked … . People v Small, 2025 NY Slip Op 06665, First Dept 12-2-25

Practice Point: This decision illustrates the level of suspicion required to justify a common-law inquiry on the street. Here the police thought the defendant crossed the street to avoid them and they saw defendant pass something to a woman, but could not say what it was. That was not enough.

Practice Point: This decision also illustrates the level of suspicion required to justify a level three seizure on the street. Here defendant was told to remove his hand from his pocket and did so. The police testified there was a bulge in the pocket, but defendant’s hands were visible. The police were not justified in handcuffing the defendant and searching his pocket.

 

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A CONFERENCE IN CHAMBERS ABOUT WHETHER DEFENDANT WAS FIRED BECAUSE OF THE SEX ABUSE ALLEGATIONS WHICH WERE THE SUBJECT OF THE TRIAL WAS DEEMED TO BE A MATERIAL STAGE OF THE TRIAL AT WHICH DEFENDANT SHOULD HAVE BEEN PRESENT BECAUSE DEFENDANT HAD FIRST-HAND KNOWLEDGE OF THE FACTS; THE COURT RULED EVIDENCE OF THE FIRING COULD BE PRESENTED; DEFENSE COUNSEL’S WAIVER OF DEFENDANT’S PRESENCE WAS DEEMED INSUFFICIENT; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s sex-offense convictions and ordering a new trial, determined it was error to fail to include the defendant in sidebar and chambers conferences and defense counsel’s waiver of defendant’s presence was insufficient:

… County Court did not at any point advise defendant of his right to be present during sidebar conferences. * * * … [A]fter jury selection concluded but before the trial began, a conference was held with the attorneys in chambers wherein defendant plainly was not present. During this conference, County Court heard arguments from both defense counsel and the prosecutor regarding the admissibility of certain evidence, including testimony that defendant was fired from his job at the YMCA following the [sexual abuse] incident in question. There was discussion by the attorneys and the court as to the reason for defendant’s termination and whether it was based upon the charged conduct in this case. The court ruled that evidence of defendant’s firing would be allowed. It was only after it had issued its ruling that the court acknowledged that defendant was not present, whereupon defense counsel stated, “I can waive his appearance.”

Noting that the conference was conducted for the purpose of determining the admissibility of proposed testimony, and further recognizing that defendant presumably had personal knowledge of the circumstances surrounding his firing such that he would have been able to meaningfully participate in the discussion … , we find that this conference constituted a material stage of the trial at which defendant had the right to be present. In that regard, the transcript of the conference makes apparent that County Court’s ultimate ruling on this issue turned on the precise reason for defendant’s termination, and defendant was deprived of the opportunity to assist his counsel in advocating against the admission of the subject testimony. Therefore, it cannot be said “that defendant’s presence would have been useless, or the benefit but a shadow” … . People v Benton, 2025 NY Slip Op 06559, Third Dept 11-26-25

Practice Point: Consult this decision for insight into when the failure to include defendant in a sidebar or chambers conference will be deemed reversible error.

 

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THE EVIDENCE DID NOT SUPPORT THE FINDINGS THAT MOTHER AND FATHER NEGLECTED THE NEWBORN WHO TESTED POSITIVE FOR AMPHETAMINES AND DOCTOR-PRESCRIBED SUBUTEX; THERE WAS NO EVIDENCE THE CHILD’S LOW BIRTH WEIGHT AND NEED FOR COMFORTING WAS RELATED TO AMPHETAMINES AS OPPOSED TO THE SUBUTEX; FATHER’S “HOSTILE” BEHAVIOR TOWARD PETITIONERS AND HIS REFUSAL TO SIGN A BIRTH CERTIFICATE WERE NOT VALID GROUNDS FOR A NEGLECT FINDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence did not support finding mother and father had neglected the newborn child based upon positive toxicology results for amphetamines and Subutex. Subutex had been prescribed by a doctor. Mother admitted using a methamphetamine once during the pregnancy. The evidence did not demonstrate a causal connection between the child’s low birth weight and need for extra comforting and the use of amphetamines as opposed to the doctor-prescribed Subutex:

In finding that the child had been neglected by the mother, Family Court referenced the positive toxicology results and the mother’s admission to having used “ICE.” The court also referenced that the child was born with a “low birth weight consistent with experiencing in utero drug exposure.” While the hospital records confirm the child was “small for gestational age,” there was no testimony linking this to the mother’s use of amphetamines/methamphetamines during pregnancy. The court also cited to the child exhibiting “telltale signs of drug exposure, exhibiting increased tremors when disturbed, high pitch crying and a need for extra comforting.” There was testimony from a registered nurse who cared for the child that the child had withdrawal symptoms, such as a “high-pitched, shrill cry” and “constantly need[ing] to be held and have human touch.” However, there was no testimony as to whether the child’s small birth weight and withdrawal symptoms were related to the mother’s methamphetamine use, rather than her use of Subutex, which her unrefuted testimony demonstrates was prescribed by a doctor.[FN2] In fact, the mother testified that, during her pregnancy, medical professionals informed her that using Subutex would be fine for the child, that there would not be any side effects, but there may be “some withdrawals.” * * *

We reach the same result regarding the father’s neglect finding, which was based upon the father’s behavior toward petitioner’s staff, as well as hospital staff, which was “hostile beyond what would be deemed acceptable by a reasonable and prudent standard.” The finding was also based upon the father’s refusal to sign a birth certificate or acknowledgement of paternity, “effectively abandoning the child when the mother was deemed to be an unsafe caregiver.” There is no support in the law that either of these behaviors constitute neglect, nor did petitioner “demonstrate that [the child’s] physical, mental or emotional condition was in imminent danger of being impaired” based upon these behaviors … . And finally, Family Court imputed the father with knowledge of the mother’s drug use and found that he neglected the child “by failing to exercise a minimum degree of care to prevent the mother from abusing drugs during her pregnancy.” This statement exaggerates what the testimony revealed was the extent of the mother’s drug use during pregnancy, and there simply was no evidence regarding the father’s knowledge of her use … . Matter of Raivyn BB. (Courtney BB.), 2025 NY Slip Op 06564, Third Dept 11-26-25

Practice Point: A newborn’s testing positive for amphetamines is not enough to support a neglect finding without proof the baby’s low birth weight and need for comforting was caused by amphetamines.

Practice Point: Father’s “hostile” attitude and refusal to sign the birth certificate were not valid grounds or a neglect finding.

 

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