IN RE: BABY GIRL M. (2018)

Based on the Court's inherent authority, and pursuant to CPLR 3211(a)(7), FCA 1046(a)(iii), and Matter of Dante M., 87 NY2d 73 (1995), the petition is DISMISSED WITHOUT PREJUDICE for failure to state a cause of action. The allegations in the petition are that 1) Ms. M. tested positive for opiates at the time she gave birth to the child eight days ago, and 2) she is not currently enrolled in and regularly attending a drug treatment program. No allegation is made that she “repeatedly misuses [opiates] to the extent that it has or would ordinarily have the effect of producing [in her] a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality.” Even read in the light most favorable to the petitioner, the allegations as pled in the petition fail to make such an allegation. It is quite possible that Ms. M. was taking a prescription painkiller at the time she tested positive for opiates. Many other explanations for the positive test consistent with innocence are possible. If there were additional facts to support an inference that the child was at imminent danger of harm within the meaning of FCA 1012(f), or an inference that Ms. M. “repeatedly misuses” opiates as defined in FCA 1046(a)(iii), then these facts should have been pled. In the current environment, where resources for investigating child maltreatment and intervening in appropriate cases are spread so thin, it is imperative that the Court be involved only when a proper cause of action is pled at the outset. Petitioner has leave to refile if and when additional facts to support a cause of action are available and properly pled, at which time the Court will absolutely entertain the petition.

Erik S. Pitchal, J.