IN RE: KREWSEAN S. (Anonymous) and Shyeed S. (Anonymous); (2000)

In a child protective proceeding pursuant to Family Court Act article 10, the petitioner appeals from an order of the Family Court, Kings County (Hepner, J.), dated June 23, 1998, which, after a fact-finding hearing, dismissed the petition.

ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing.

Family Court Act article 10 permits a finding of neglect to be made if a child's “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent * * * to exercise a minimum degree of care * * * in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm or a substantial risk thereof” (Family Ct. Act § 1012[f][i][B] ).

 After the mother had taken her older child, Krewsean S., to the Kings County Hospital Center in October 1996, seeking help for his “moderate to severe” attention deficit hyperactivity disorder, she did not thereafter participate in his treatment plan, respond to repeated phone calls from hospital staff, or even attempt to visit the child for approximately three weeks (see, e.g., Matter of Faridah W., 180 A.D.2d 451, 579 N.Y.S.2d 377;  see also, Matter of Austin A., 227 A.D.2d 677, 641 N.Y.S.2d 752;  Matter of Tommy A., Jr., 201 A.D.2d 970, 607 N.Y.S.2d 831).   Moreover, the mother is an admitted frequent marihuana user and suffers from a severe depressive disorder which causes her to be unfocused, unable to keep appointments, and incapable of adhering to a regular schedule.   Mental health professionals testified at the hearing that Krewsean's condition would improve only in a carefully structured home environment wherein he would be given his medications regularly, be carefully monitored for adverse drug reactions and behavioral problems, and taken for weekly therapy sessions.   In addition, expert testimony was not necessary to establish that the mother's condition posed an imminent danger to Krewsean's physical, mental, and emotional health (see, Matter of Barbara S., 244 A.D.2d 556, 557, 664 N.Y.S.2d 475;  Matter of Naticia Q., 195 A.D.2d 616, 599 N.Y.S.2d 759;  Matter of Zariyasta S., 158 A.D.2d 45, 47, 557 N.Y.S.2d 895;  Matter of Danielle M., 151 A.D.2d 240, 542 N.Y.S.2d 525).   Therefore, we conclude that the evidence clearly preponderates in favor of a finding of neglect with respect to Krewsean (see, Family Ct. Act § 1046[b] ).

 Furthermore, the mother's use of marihuana provides a basis for a finding of neglect with respect to her younger child, Shyeed S. (see, Family Ct. Act § 1012[d], 1046[a][i], [iii];  Public Health Law § 3306[d][13];  see also, Matter of Synovia G., 163 A.D.2d 257, 558 N.Y.S.2d 539).   The mother has failed to rebut the presumption that she neglected Shyheed based upon her routine use of a controlled substance since she has resisted “voluntarily and regularly participating in a recognized rehabilitation program” (Family Ct. Act § 1012[f], 1046[a][iii] ).

Accordingly, the court erred in dismissing the neglect petition (see, Family Ct. Act § 1046;  Matter of Nicole V., 71 N.Y.2d 112, 524 N.Y.S.2d 19, 518 N.E.2d 914;  Matter of Commissioner of Social Servs. of City of New York [Darnell N.], 195 A.D.2d 459, 600 N.Y.S.2d 134).

MEMORANDUM BY THE COURT.