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Mark Gilmer, Esq.

Saturday, September 4, 2021

Has ACS taken your children because of drug or alcohol use?

 As a New York City Family Court Lawyer and ACS Defense attorney, I have come across many parent’s who have had their children taken from them or have had ACS cases filed against them with an ensuing investigation due to drug or alcohol use. I have successfully argued for the return of children in many cases of this type because the mere use of drugs or alcohol does not mean that a child was harmed or is in imminent danger of being harmed.  I have also successfully represented parents during investigation or after ACS has indicated the parent for inadequate guardianship as a result of drug or alcohol misuse.  I have successfully  argued that abuse of drugs or alcohol on its own does not mean that a child should be removed from a parent or that a neglect finding should be made against 

The Family Court Act defines a "neglected child" as a child less than 18 years of age "whose 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 misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions" (Family Court Act § 1012 [f] [i] [B]).

‘The law is broken down into two parts, the first part being actual or imminent danger of physical mental or emotional impairment.  Courts have held that this is serious or potential harm to the child and not just undesirable parental behavior. Evidence of actual harm to a child may be shown by expert medical or psychological evidence or through factual circumstances pertaining to the case. Imminent danger to a child may be more difficult to show but if proven may be a ground for a finding of neglect to be made. Imminent harm is harm that is near or impending not just possible.

ACS can prove physical, mental or emotional impairment in two ways. The first way is that ACS can show serious and ongoing substance abuse by the parent and the court will draw an inference that there is impairment or imminent impairment. It is then the parent’s responsibility to show there was no such impairment. ACS can also submit evidence that the parent’s substance use resulted in actual or imminent danger of impairment to the child. The mere fact that a parent has used drugs or alcohol, does not mean that a finding a neglect will be made.

ACS must actually prove impairment of the child’s physical, mental or emotional or imminent impairment as a result of the inadequate guardianship of the parent by misusing drugs or alcohol. The ongoing or serious use of drugs or alcohol will allow the court to infer that there was impairment or imminent risk of impairment. The parent through her ACS defense attorney then can refute that presumption with their own evidence.

The Family Court must way all evidence in the record before it prior to making a decision. Although evidence that a parent is actively in a drug treatment program is good, it is not required to refute the inference that actual or imminent harm has occurred. ACS must prove regular and continuous drug or alcohol abuse that substantially impairs a person’s judgment or ability to function. Drug or alcohol abuse is not one size fits all. There are many varieties not all require treatment nor does all drug or alcohol abuse on its own support an inference that children have been harmed or placed in an imminent risk of harm. 

Furthermore, drug or alcohol abuse does not create an inference of impairment to a child or imminent impairment to a child when a parent is regularly participating in a recognized treatment program. Even evidence presented by ACS that the parent loses control because of drug or alcohol abuse will not be sufficient to form a finding if that parent is in a rehabilitation program absent other proof that there was actual or imminent harm to the child.

Even if a person admits that they use drugs to ACS this is insufficient to support a neglect finding if ACS doesn’t show the types of drug this person used, the duration, frequency or repetitiveness of his drug use. Furthermore, ACS will have a hard time proving a case if there is no proof that drugs were used in front of the children. The mere fact a parent that uses drugs is not in a drug treatment program is not sufficient to make a finding of neglect. 
The mere usage of drugs is not sufficient to produce a finding of impairment or imminent impairment. Your neglect attorney will bring out the deficiencies of ACS case on your behalf.

Not only does ACS have to prove impairment impairment or impending impairment they must show a link between the parent’s conduct and the impairment or imminent impairment to the child. The harm to the child must be clearly linked to to the parent’s failure to exercise proper care. For instance if ACS tries to use a child’s emotional disorder as the alleged harm to the child it must show a link between the parent’s drug or alcohol abuse and this emotional condition. Just because a child has an emotional condition, for example doesn’t mean the parent’s misuse of drugs or alcohol caused it.

If you fail a drug test, it doesn’t mean that you are guilty of neglect. ACS must show some sort of resulting harm to the child. Your ACS Defense attorney will force ACS to show exactly what harm occurred to the child and if the parent actually caused this harm by drug or alcohol abuse. Just because a child is doing poorly in school doesn’t mean the parent’s drug or alcohol abuse caused it. 

Hiring a good neglect attorney is important in these situations. ACS will often go after a parent very aggressively if they have a substance use disorder.  A parent in this situation needs to understand that just because they have issues with the use or abuse of substances doesn’t mean that their child should be taken from them or that a finding should be made against them.

If you have been accused of drug or alcohol use by ACS  give me a call at 718 864 2011.

 

 

 



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