Antionette T. Respondent–Appellant, v. << (2025)

Supreme Court, Appellate Division, First Department, New York.

In the MATTEROF J.M., a Child Under Eighteen Years of Age, etc., Antionette T. Respondent–Appellant, v.
Robert M. Respondent–Respondent, v. Administration for Children's Services, Petitioner–Respondent.

3438

Decided: January 09, 2025

Moulton, J.P., Kapnick, Scarpulla, Mendez, O'Neill Levy, JJ.

The Center for Family Representation, Inc., New York (Charles S. Rosenberg of counsel), for appellant. Neighborhood Defender Service of Harlem, New York (Michael Weinstein of counsel), for Robert M., respondent. Muriel Goode–Trufant, New York (Jonathan A. Popolow of counsel), for Administration for Children's Services, respondent. Karen Freedman, Lawyers for Children Inc., New York (Shirim Nothenberg of counsel), attorney for the child.

Order, Family Court, New York County (Grace Oboma–Layat, J.), entered on or about September 13, 2023, which, to the extent appealed from as limited by the briefs, prior to a fact-finding hearing, granted the application of the Administration for Children's Services pursuant to CPLR 3217(b) for a voluntary discontinuance of the proceeding, and dismissed the neglect petition against respondent mother Antionette T. without prejudice, unanimously affirmed, without costs.

Unless a court states otherwise a voluntary discontinuance is without prejudice and within the court's discretion (see CPLR 3217[b]; see also Matter of Reid v. Brown, 165 A.D.3d 949, 950, 86 N.Y.S.3d 215 [2d Dept. 2018]). Family Court's decision was grounded in a legitimate concern that the mother might regress, as she had in the past, once the case was no longer active, potentially putting the child at risk. This concern was particularly justified by the mother's failure to comply with substance abuse treatment and her refusal to participate in toxicology screenings following a positive test for marijuana and cocaine.

We have reviewed the mother's remaining arguments and find them unavailing.

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