IN RE: DIOR S. (2018)

Order of disposition, Family Court, New York County (Jane Pearl, J.), entered on or about February 22, 2017, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about December 2, 2016, which found that respondent mother neglected the subject children, unanimously affirmed, without costs.  Appeal from the fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

Petitioner agency proved by a preponderance of the evidence that the mother neglected the children by failing to treat her mental illness (see Family Ct. Act §§ 1012[f][i][B];  1046[b][i];  Matter of Michael P. [Orthensia H.], 137 A.D.3d 499, 500, 27 N.Y.S.3d 123 [1st Dept. 2016] ).  The grandmother's testimony about the mother's violent behavior toward her and the mother's admission that she was diagnosed with bipolar disorder raised the substantial probability that the mother's failure to treat her mental illness would place the children at imminent risk of impairment if released to her care (see Matter of Enrique S. [Kelba C.S.], 134 A.D.3d 576, 577, 23 N.Y.S.3d 30 [1st Dept. 2015], lv denied 27 N.Y.3d 948, 29 N.Y.S.3d 910, 49 N.E.3d 1203 [2016] ).  In addition, the testimony about the April 3, 2016 incident demonstrated that the mother's untreated mental illness not only created an imminent risk of harm to the children, but resulted in actual impairment to the younger child after she lost her temper, threw an aluminum pot cover and struck him in the head resulting in the child sustaining injuries that were visible for at least three days after the incident (see Matter of Princess Ashley C. [Florida S.C.], 96 A.D.3d 682, 682, 947 N.Y.S.2d 513 [1st Dept. 2012] ).

The mother's regular, long-term drug use while the children were in her care constituted prima facie evidence of neglect, which she failed to rebut by showing that she was regularly participating in treatment (see Family Ct. Act § 1046[a][iii];  Matter of Nyheem E. [Jamila G.], 134 A.D.3d 517, 519, 23 N.Y.S.3d 9 [1st Dept. 2015] ).  The fact that she entered a drug treatment program about 16 days before the neglect petitions were filed does not outweigh her significant history (see Matter of Messiah C. [Laverne C.], 95 A.D.3d 449, 450, 942 N.Y.S.2d 867 [1st Dept. 2012] ).