IN RE: SAAPHIRE A.W. (2022)

Order of disposition, Family Court, Bronx County (Lynn M. Leopold, J.), entered on or about July 10, 2020, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about June 22, 2020, which found that respondent mother neglected the subject child Olivia W. by misusing marijuana and neglected the other subject children by failing to provide a minimum degree of care and derivatively neglected Olivia W., unanimously modified, on the law, to the extent of vacating the finding of neglect of Olivia based on the mother's use of marijuana, and otherwise affirmed, without costs.

The finding that the mother neglected the three oldest children and derivatively neglected the youngest child was supported by a preponderance of the evidence showing that she should have known that her eldest son was making sexual contact with his two younger siblings and failed to act to protect them (see Matter of Rayshawn R., 309 A.D.2d 681, 682, 765 N.Y.S.2d 872 [1st Dept. 2003];  Matter of Alena O., 220 A.D.2d 358, 361–362, 633 N.Y.S.2d 127 [1st Dept. 1995]).  Petitioner presented evidence that the mother discovered her eldest son, Denecci, naked on top of her daughter and that her younger son told her that Denecci did the same thing to him, but thereafter she continued to allow her son to have access to her daughter and to continue sharing a bedroom with the younger son.  The evidence also supports the finding that the mother neglected the children by allowing her older daughter to be exposed to adult sexual activity and pornography (see Matter of Cerenity F. [Jennifer W.], 160 A.D.3d 540, 541, 74 N.Y.S.3d 250 [1st Dept. 2018]).

However, the evidence that the mother smoked marijuana while pregnant with her youngest daughter, and that the mother and child both tested positive for marijuana at the time of the birth, is insufficient, in and of itself, to sustain a finding that the child was physically, mentally or emotionally impaired, or was in imminent danger of being impaired (Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995]).  Here, as acknowledged by the agency, there was no evidence that the mother's marijuana use impacted her judgment or behavior, or that the child was impaired or placed in imminent risk of impairment by the mother's drug use (see Matter of Jeffrey M. [Noemi C.], 102 A.D.3d 608, 610, 959 N.Y.S.2d 59 [1st Dept. 2013];  Matter of Anastasia G., 52 A.D.3d 830, 832, 861 N.Y.S.2d 126 [2d Dept. 2008]).  Furthermore, the finding of neglect based solely on use of marijuana, without a finding of actual or imminent impairment of the child's physical or emotional condition, is inconsistent with this State's public policy legalizing marijuana, as reflected in the recent amendment to the Family Court Act (Family Court Act § 1046[a][iii] [L 2021, ch 92, § 58, eff March 31, 2021]).