## Facts

- In November 1990, Dante M. was born premature, with low birth weight, and required neonatal intensive care and follow-up care.
- Toxicology testing showed both Dante and his mother, Denise R. M., were positive for cocaine at the time of birth.
- Nassau County Department of Social Services (DSS) first filed a temporary-removal petition under Family Court Act (FCA) § 1022 to remove Dante from his mother’s care; the Family Court denied that request.
- DSS then filed an Article 10 child-protective petition alleging neglect on behalf of Dante and his older sister.
- DSS presented evidence that the mother had a history of cocaine abuse and had been admitted to multiple drug treatment programs.
- Two of the mother’s older children were already in the maternal grandmother’s custody due to the mother’s drug problem and inability to care for them.
- The maternal grandmother reported seeing the mother “high on cocaine” during the final weeks of the pregnancy.
- The mother told DSS she smoked a cigarette at a Halloween party late in the pregnancy that “may have contained cocaine.”
- At the neglect fact-finding hearing, the mother did not testify.
- The Family Court found both children neglected, stating that Dante’s cocaine-positive birth, by itself, was enough to support neglect findings as to both Dante and his sister; the court allowed the mother to keep custody under DSS supervision for one year.
- The Appellate Division affirmed the neglect findings, relying on evidence beyond the positive toxicology result.
- The New York Court of Appeals granted review limited to whether a neglect finding may rest solely on a newborn’s positive toxicology for a controlled substance.

## Issues

1. Under New York FCA Article 10, may a court find neglect of a newborn and the newborn’s older sibling based solely on the newborn’s positive toxicology for a controlled substance?
2. If a positive toxicology result alone is generally insufficient, did the record here contain additional proof supporting neglect findings as to both children?

## Decision

- The Court of Appeals held that a newborn’s positive toxicology for a controlled substance, standing alone, is generally not sufficient to support a neglect finding under FCA Article 10.
- The court nevertheless affirmed the neglect adjudications in this case because the record included additional evidence supporting the Family Court’s findings of neglect as to both Dante and his older sister.
- Disposition: affirmed.

## Legal Principles

- A neglect finding under FCA Article 10 requires proof, by a preponderance of the evidence, that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired due to a parent’s failure to exercise a minimum degree of care.
- A positive toxicology result at birth may be relevant evidence, but it does not automatically establish actual or imminent impairment without more.
- Courts generally must look for additional proof tying parental drug use to danger to the child’s condition, such as evidence of ongoing substance abuse, inability to provide adequate care, prior child-protective history, observed drug use close in time to birth, or medical facts showing harm or risk.
- Where the record shows a sustained pattern of parental substance abuse and facts indicating impaired caregiving, a neglect finding may be supported as to a drug-exposed newborn and, depending on the proof, as to an older sibling in the same home.

## Conclusion

In re Dante M. clarified that New York law does not treat a newborn’s cocaine-positive test as automatic proof of neglect; neglect generally requires additional evidence showing actual or imminent harm connected to a parent’s failure to provide minimum care. Even so, the Court of Appeals affirmed the neglect findings for both Dante and his older sister because the record included evidence of the mother’s continuing cocaine abuse, prior loss of custody of other children, observations of drug use near the end of pregnancy, the mother’s own admission suggesting recent cocaine exposure, and Dante’s fragile medical condition at birth.


In re Dante M., 661 N.E.2d 138 (1995)