Matter of Liam DD.: Reinforcing the Drug-Use Presumption of Neglect and Clarifying Appellate Limits for Nonappealing Parents

I. Introduction

The Appellate Division, Third Department’s decision in Matter of Liam DD. (Jamie CC.), 2025 NY Slip Op 07253 (Dec. 24, 2025), is a significant article 10 neglect case that clarifies and consolidates several strands of New York family law:

• It rigorously applies the statutory presumption of neglect for parental drug misuse under Family Ct Act § 1046(a)(iii), especially in the context of methamphetamine use.
• It confirms that prior indicated reports may be used to show “repeated” substance misuse and lack of sustained rehabilitation, defeating a parent’s claim of a “one-time relapse.”
• It underscores that violation of a DSS “safety plan,” even where there is some confusion over its precise terms and no written copy, can powerfully support a neglect finding when the parent understands the basic restriction.
• On the procedural side, it reiterates that a notice of appeal is a nonwaivable, jurisdictional prerequisite and that a nonappealing parent cannot obtain affirmative relief on another parent’s appeal.
• It situates these appellate limitations against the background of the Court of Appeals’ recent recognition (in Matter of Parker J. [Beth F.]) that certain Family Court litigants have a right to effective assistance of assigned counsel—clarifying that this decision does not open a generic “equitable” backdoor around basic appellate jurisdictional rules.

Collectively, the opinion both tightens the doctrinal framework for substance-use-based neglect adjudications and reinforces strict adherence to jurisdictional and appellate rules in Article 10 proceedings.

II. Factual and Procedural Background

A. The Parties and Living Situation

• The case involves a child, Liam (born in 2020), and his parents, the mother (Jamie CC.) and the father (Bryan DD.).
• In December 2022, the parents were living separately. Liam primarily resided with the father at a friend’s home, while the mother lived elsewhere.

B. December 21–22, 2022: Methamphetamine Use and Arrest

On December 21–22, 2022, the mother used methamphetamine outside the child’s presence. On December 22:

• She drove a vehicle and was stopped by a sheriff’s sergeant.
• The sergeant searched the vehicle and found:
  • Butane torches and fuel
  • Pseudoephedrine
  • A digital scale
  • Glass pipeware
  • Hallucinogenic mushrooms
  • Methamphetamine in plastic baggies
• These items were on the driver’s side floorboard or near items identified as the mother’s personal property.
• She was arrested on multiple drug-related charges, including unlawful manufacture of methamphetamine.

C. December 24–27, 2022: Homelessness, Hospital Visit, and Safety Plan

On December 24, 2022:

• The mother went to the residence where the father and Liam were staying, expecting to spend Christmas together.
• An argument over her recent arrest ensued, and the father abruptly left.
• The mother left with Liam and later brought him to a hospital emergency room for flu-like symptoms.
• At the hospital, she admitted that:
  • She was homeless.
  • She lacked diapers, food, and medicine for the child due to leaving the father’s home abruptly.

This hospital visit triggered a Child Protective Services hotline report. On December 27, 2022:

• A DSS caseworker met the mother, who was obtaining a voucher to stay in emergency DSS housing (a motel).
• The mother admitted using methamphetamine on December 21–22.
• She submitted to a drug screen that was positive for methamphetamine and amphetamine.
• DSS and police visited her motel room and implemented a “safety plan”:
  • Liam would reside with the father at the paternal grandparents’ home.
  • The mother’s contact with Liam would be supervised only.
  • The restriction would remain until the mother:
    • Produced appropriate (clean) drug screens, and
    • Was meaningfully engaged in substance abuse treatment.
• Between December 24 and 27, Liam was solely in the mother’s care while she still had methamphetamine in her system, as confirmed by the December 27 drug test.

D. January 20, 2023: Violation of the Safety Plan

Despite understanding that the plan barred unsupervised contact, on January 20, 2023:

• The mother retrieved Liam from the father.
• A person initially present in a supervisory role had to leave for work.
• Liam was then in the mother’s sole, unsupervised care for about three hours in direct violation of the safety plan’s conditions.

E. Neglect Petitions and Family Court Ruling

• In January 2023, DSS filed:
  • A neglect petition against the mother, based on:
    • Her drug use (specifically methamphetamine).
    • Failure to provide necessities (shelter, food, medicine).
    • Failure to comply with the DSS safety plan.
  • A separate neglect petition against the father, based on his alleged failure to comply with that same safety plan (allowing the mother to have unsupervised contact.
• After a fact-finding hearing, Family Court (Hayden, J.) adjudicated Liam neglected by both parents.
• The mother filed a notice of appeal; the father did not, but tried to challenge the neglect finding by filing a respondent’s brief asking for relief.

III. Summary of the Opinion

A. As to the Father: No Jurisdiction, No Relief

The Third Department refused to consider the father’s challenges to the neglect finding because:

• He did not file or serve a notice of appeal as required by CPLR 5515(1) and Family Ct Act § 1115.
• Filing a notice of appeal is a “nonwaivable and jurisdictional” requirement.
• A court cannot grant affirmative relief to a nonappealing party unless such relief is necessary to afford full relief to an appealing party (Hecht v City of New York).
• The mother’s appeal could be fully resolved without altering the Father’s neglect adjudication.

The father’s alternative arguments—that he should obtain relief based on ineffective assistance of counsel or under CPLR 306-b’s “interest of justice” standard—were rejected as meritless.

B. As to the Mother: Neglect Finding Affirmed

Turning to the mother, the Appellate Division:

• Restated the statutory definition of neglect: impairment or imminent danger of impairment of a child’s condition resulting from a parent’s failure to exercise a minimum degree of care in supervision or guardianship.
• Emphasized that actual injury is not required; an “imminent threat” (danger that is “near or impending”) suffices.
• Held that a prima facie case of neglect was established under Family Ct Act § 1046(a)(iii) by:
  • The mother’s admitted methamphetamine use on December 21–22, 2022.
  • The positive methamphetamine/amphetamine screen on December 27.
  • The presence of substantial drug paraphernalia consistent with meth manufacture/use in her vehicle.
• Found the mother failed to rebut the statutory presumption of neglect:
  • She did not demonstrate regular participation in a drug rehabilitation program during the relevant time.
  • Evidence that Liam was otherwise well cared for was legally insufficient to rebut the presumption.
• Even aside from the statutory presumption, concluded that:
  • The mother’s methamphetamine use and continued positive screen while caring for Liam.
  • Her voluntary departure from stable housing, resulting in temporary homelessness and lack of basic necessities.
  • Her knowing violation of the safety plan by having Liam unsupervised.
  collectively established that Liam was at imminent risk of harm.
• Deferred to Family Court’s credibility findings, including rejection of the mother’s explanations about the items in her car and her minimizing of her substance use as a “small reoccurrence.”

Accordingly, the order adjudicating Liam a neglected child as to the mother was affirmed, without costs.

IV. Detailed Analysis

A. Appellate Jurisdiction and Limits on Relief to Nonappealing Parties

1. The Jurisdictional Nature of the Notice of Appeal

The Court begins with a procedural threshold: whether it can consider the father’s arguments at all. The answer turns on the function of a notice of appeal.

• Family Ct Act § 1115 incorporates the procedural requirements of CPLR 5515(1) for appeals from Family Court.
• CPLR 5515(1) requires that an appeal be taken “by serving on the adverse party and filing in the office where the judgment or order of the court of original instance is entered a notice of appeal.”
• The Court, citing Ogborn v Hilts, 262 AD2d 857 (3d Dept 1999), and Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637 (1973), reaffirms that:

  The filing of a notice of appeal is nonwaivable and jurisdictional.

Because the father never filed a notice of appeal, the Appellate Division formally lacks jurisdiction over his proposed challenges to the neglect adjudication. That alone is sufficient to foreclose his requested relief.

2. No “Piggybacking” Relief for Nonappealing Parties

The Court then invokes the longstanding rule from Hecht v City of New York, 60 NY2d 57 (1983):

Generally, an appellate court cannot grant affirmative relief to a nonappealing party unless it is necessary to do so in order to accord full relief to a party who has appealed.

Applied here:

• The mother’s appeal focused on the propriety of the neglect finding as to her.
• The Appellate Division could fully grant or deny her requested relief (e.g., reversing, modifying, or affirming the neglect finding against her) without disturbing the separate finding that the father neglected Liam.
• There was no need to “reach over” and modify or vacate the neglect order as to the father to give the mother full relief.

Consistent with Hecht, and subsequent Third Department cases like Matter of Susan UU. v Scott VV., 119 AD3d 1117 (3d Dept 2014), McGovern v McGovern, 218 AD3d 1067 (3d Dept 2023), and Finch v Erie Ins. Co., 211 AD3d 1152 (3d Dept 2022), the Court refuses to grant the father affirmative relief he, procedurally, did not ask for.

3. Ineffective Assistance of Counsel and Parker J.

The father attempted to circumvent the absence of a notice of appeal by arguing that any failure to properly perfect an appeal resulted from ineffective assistance of counsel.

In a footnote, the Third Department notes that, after oral argument, the Court of Appeals decided Matter of Parker J. [Beth F.], 2025 NY Slip Op 06533 (2025), holding that:

• The statutory right to assigned counsel in certain Family Court proceedings necessarily includes a right to effective counsel.
• A remedy for ineffective assistance exists when such ineffectiveness is apparent “on the face of the record.”

However, the Appellate Division concludes it need not apply that analysis here:

• The father’s counsel’s alleged shortcomings do not appear “on the face of the record.”
• Even apart from Parker J., the father cannot use a generalized ineffective-assistance claim to erase the jurisdictional defect created by his failure to file a notice of appeal.

The key doctrinal message is narrow but important: Parker J. creates a remedy for clear, on-the-record ineffective assistance in Family Court matters; it does not transform appellate jurisdictional rules—like the nonwaivable requirement of a notice of appeal—into discretionary or “equitable” matters.

4. Rejection of “Interest of Justice” Under CPLR 306-b

The father also gestured at CPLR 306-b, which allows courts to extend the time for service of a summons in the “interest of justice.” The Court summarily rejects this argument:

• The statute concerns extensions of time for service of pleadings in the trial court, not appellate practice.
• It provides no basis for granting appellate relief where a party failed to initiate an appeal at all.

Thus, the Court closes the door on using CPLR 306-b as a flexible tool to rescue untimely or nonexistent Family Court appeals.

B. Substantive Neglect Law Under Family Ct Act Article 10

1. Core Neglect Standard: Imminent Danger and Minimum Degree of Care

The Court reiterates the basic definition of neglect (articulated in numerous prior decisions, and grounded in Family Ct Act § 1012):

• Neglect is established when:
  1. The child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and
  2. The actual or threatened harm results from the parent’s failure to exercise a minimum degree of care in supervision or guardianship.
• The standard is objective: whether a reasonable and prudent parent would have acted (or failed to act) the same way in the circumstances (Matter of Joseph GG. [Chrystal FF.], 227 AD3d 1238).
• “Imminent danger” does not require actual harm; danger that is “near or impending, not merely possible,” is sufficient (Matter of Messiah RR. [Christina RR.], 190 AD3d 1055; Matter of Thomas XX. [Thomas YY.], 180 AD3d 1175).

This framing is crucial: the Court is not punishing bad choices per se; it is asking whether those choices placed the child in substantial and imminent risk.

2. The Statutory Drug-Use Presumption: Family Ct Act § 1046(a)(iii)

The centerpiece of the opinion is Family Ct Act § 1046(a)(iii), which provides that:

Proof that a person repeatedly misuses a drug or drugs, to the extent that it has or would ordinarily have the effect of producing in the user a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or in the care of such person is a neglected child, except where such person is voluntarily and regularly participating in a rehabilitative program.

Key elements:

• Repeated misuse: Not a single experimental use; there must be a pattern.
• Substantial impairment or irrationality: The level of use must ordinarily impair judgment.
• Prima facie case: Once those elements are proven, the statute creates a presumption that the child is neglected.
• Exception: The presumption does not arise if the parent is voluntarily and regularly participating in a rehabilitative program addressing the drug use.

Importantly, once this prima facie case is established:

• The petitioner need not prove concrete instances of unsafe behavior toward the child.
• Neither actual harm nor a specific, individualized showing of risk is required (Matter of Rosaliee HH. [Samantha HH.], 221 AD3d 1299; Matter of Jonathan E. [John E.], 149 AD3d 1197; Matter of Kylee R. [David R.], 154 AD3d 1089).

3. Application: Methamphetamine Use and the “Common Sense” of Impairment

The Third Department holds that:

• The mother’s admitted methamphetamine use on December 21–22 and the positive drug screen on December 27 established “repeated misuse” within the meaning of § 1046(a)(iii).
• The discovery of:
  • Butane torches, fuel, pseudoephedrine, digital scales, glass pipes, mushrooms, and baggies of methamphetamine
  in her vehicle strengthens the conclusion that this was not a trivial or isolated usage event.
  • The Court explicitly rejects the mother’s argument that DSS was required to present additional expert or medical evidence to show that overnight methamphetamine use would ordinarily impair her judgment:

    Petitioner was not required to present additional evidence for the commonsense proposition that overnight methamphetamine use—particularly given the quantity and variety of drugs found in her vehicle—would ordinarily impair her judgment.

  This is one of the opinion’s key doctrinal contributions: for strong stimulants like methamphetamine, a court may rely on “common sense” to infer that their use substantially impairs judgment. Specialist testimony is not a prerequisite to triggering § 1046(a)(iii)’s presumption.

  4. Establishing “Repeated” Misuse: Use of Prior Indicated Reports

  The mother argued that her December 21 relapse was a singular, isolated episode. The Court rejects this characterization by pointing to:

  • Certified records of prior indicated reports involving:
    • Methamphetamine misuse in 2019, and
    • Alcohol abuse in 2014.
  • The mother’s positive methamphetamine test on December 27.
  • The implausibility of her explanations regarding the vehicle search and the presence of drug paraphernalia.

  These factors support a finding that:

  • Her drug use was ongoing, not a “one-off.”
  • There was a lack of sustained rehabilitation over the years.

  Doctrinally, this confirms that:

  • Prior indicated reports are substantive evidence of recurrence and can transform an apparent “single relapse” into “repeated misuse” for § 1046(a)(iii) purposes.
  • The court may look at a multi-year pattern to assess whether the presumption arises.

  5. Rebutting the Presumption: Rehabilitation Required, Not Mere Adequate Care

  Once the presumption was triggered, the burden shifted to the mother to rebut it. The Court finds that she did not:

  • There was no evidence that she was:
    • “Voluntarily and regularly” engaged in a drug rehabilitation program during the relevant period.
    • In sustained treatment specifically addressing methamphetamine dependence.
  • Her argument that Liam was otherwise well cared for, had his needs met, or was medically attended to is legally insufficient to rebut the presumption.

  The Court quotes Matter of Jonathan E. [John E.], 149 AD3d at 1200:

  The presumption of neglect that arises under Family Ct Act § 1046(a)(iii) cannot be rebutted by evidence that the child was well cared for and not in danger.

  In practical terms, this is critical: a parent cannot defeat the drug-use presumption simply by showing that the child is clothed, fed, and appears safe. The statute focuses on the risk that arises from the parent’s impaired judgment, not only the immediate condition of the child.

  6. Independent Neglect Finding Apart from the Presumption

  The Court expressly states that “even without the statutory presumption,” the record would support a neglect finding because:

  • The mother used methamphetamine and possessed multiple controlled substances shortly before taking custody of Liam.
  • Several days later, she still tested positive while caring for him.
  • She voluntarily left a stable home, rendering herself and Liam temporarily homeless and without basic supplies (diapers, food, medicine) despite having access to such necessities through the father.
  • She knowingly violated the safety plan, resulting in unsupervised time with the child while she remained untreated.

  Each of these circumstances independently reflects a failure to exercise a minimum degree of care and places Liam in imminent danger of impairment.

  C. Safety Plans as Evidence of Neglect

  The DSS safety plan in this case barred the mother from having unsupervised contact with Liam until she engaged in substance abuse treatment and showed clean drug screens. The mother contended:

  • There was no written copy of the plan.
  • Testimony revealed “sincere confusion” about its precise requirements.

  The Court responds:

  • What matters is that the mother understood she was prohibited from unsupervised contact until she addressed her substance abuse.
  • She nonetheless had Liam in her sole care for several hours on January 20, 2023, without demonstrating treatment engagement or sobriety.
  • This violation, in the context of ongoing methamphetamine use, supports a finding of neglect.

  Her describing the relapse as a “small reoccurrence” and minimizing its seriousness demonstrated:

  • Lack of insight into the risks posed by her drug use.
  • An inability or unwillingness to appreciate why supervision and treatment were essential for Liam’s safety.

  The opinion signals to practitioners that:

  • DSS “safety plans” are not mere informal suggestions; when clearly explained, a parent’s violation can constitute powerful corroborative evidence of neglect.
  • Even if the plan is not reduced to writing, what counts is the parent’s actual understanding and conduct.

  D. Deference to Family Court’s Credibility Determinations

  The Court repeatedly emphasizes its deferential standard of review:

  In assessing Family Court's determination in a neglect proceeding, we accord great deference to its factual findings and assessment of credibility and will not disturb such findings if they are supported by a sound and substantial basis.

  Here, the Family Court had discredited key parts of the mother’s testimony, including:

  • Her claim that the scale was used for “crafting.”
  • Her assertion that she “found” the mushrooms while hiking.
  • Her alleged unawareness of pseudoephedrine and butane torches in her car.

  The Appellate Division accepted these credibility findings, noting a “sound and substantial basis” in the record. That acceptance:

  • Undermines her attempt to minimize the seriousness and extent of her drug involvement.
  • Supports the broader conclusion that her testimony overall lacked candor and insight into the risk she posed to Liam.

  This underscores a practical reality: appeals in neglect cases are often won or lost on credibility. Unless the record is plainly inconsistent with the trial court’s view of the witnesses, appellate intervention is rare.

  E. Treatment of Scientific Articles and Expert Evidence

  The mother relied on journal articles purporting to address how long marijuana and methamphetamine remain in the body and are detectable on tests. The Court disposes of this argument succinctly:

  • The articles were not admitted into evidence at the fact-finding hearing.
  • No admissible medical proof was presented.
  • Accordingly, the articles warrant “no extended discussion.”

  This reinforces two points:

  • Appellate courts are limited to the trial record; materials first raised on appeal, or referenced but not admitted, carry no weight.
  • Where powerful common-sense inferences about impairment are available (as with methamphetamine use and drug paraphernalia), expert testimony is not strictly required to sustain a neglect finding.

  V. Precedents Cited and Their Influence

  A. Appellate Procedure and Jurisdiction

  • Ogborn v Hilts, 262 AD2d 857 (3d Dept 1999) and Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637 (1973)
    These decisions confirm that filing a notice of appeal is a jurisdictional prerequisite; failure to do so is fatal to appellate review.
  • Hecht v City of New York, 60 NY2d 57 (1983)
    Establishes that appellate courts generally cannot grant affirmative relief to nonappealing parties unless necessary to afford full relief to those who have appealed. This principle prevents the father in Liam DD. from benefiting from the mother’s appeal.
  • Matter of Susan UU. v Scott VV., 119 AD3d 1117 (3d Dept 2014); McGovern v McGovern, 218 AD3d 1067 (3d Dept 2023); Matter of 61 Crown St., LLC v City of Kingston Common Council, 217 AD3d 1144 (3d Dept 2023); Finch v Erie Ins. Co., 211 AD3d 1152 (3d Dept 2022); Matter of Rutland v O'Brien, 143 AD3d 1060 (3d Dept 2016)
    These cases are cited to show consistent adherence to Hecht and to illustrate circumstances where the courts refused to grant relief to nonappealing parties.

  B. Core Neglect and Risk Standards

  • Matter of N'Thai N. [Mali N.], 242 AD3d 1313 (3d Dept 2025)
    Reiterates the general neglect standard: impairment or imminent danger of impairment caused by a failure to exercise a minimum degree of care in supervision or guardianship.
  • Matter of Emmanuel J. [Maximus L.], 149 AD3d 1292 (3d Dept 2017) and Matter of Thomas XX. [Thomas YY.], 180 AD3d 1175 (3d Dept 2020)
    Confirm that a single incident or circumstance may suffice for a neglect finding where imminent danger is established.
  • Matter of Joseph GG. [Chrystal FF.], 227 AD3d 1238 (3d Dept 2024)
    Emphasizes the “reasonable and prudent parent” standard for assessing minimum degree of care.
  • Matter of Hazelee DD. [Nicholas EE.], 222 AD3d 1223 (3d Dept 2023)
    Restates that neglect must be proven by “competent, material, and relevant” evidence, echoing Family Ct Act § 1046(b)(iii).
  • Matter of Messiah RR. [Christina RR.], 190 AD3d 1055 (3d Dept 2021) and Matter of Thomas XX. [Thomas YY.], 180 AD3d 1175 (3d Dept 2020)
    Clarify that actual injury or impairment is not required; “near or impending” danger suffices for neglect.
  • Matter of Kingston V. [Javon V.], 234 AD3d 1056 (3d Dept 2025)
    Reaffirms the standard of deference to Family Court’s credibility determinations and factual findings in neglect cases.

  C. Drug-Use Presumption and Substance Abuse Cases

  • Matter of Rosaliee HH. [Samantha HH.], 221 AD3d 1299 (3d Dept 2023)
    Central authority cited for the proposition that, once the statutory presumption in § 1046(a)(iii) is triggered, there is no required showing of specific harmful conduct toward the child or even a specific risk of impairment.
  • Matter of Kylee R. [David R.], 154 AD3d 1089 (3d Dept 2017), lv denied 30 NY3d 911 (2018)
    Establishes that the § 1046(a)(iii) presumption applies and that it is rebutted only by proof of voluntary and regular participation in rehabilitation—merely adequate day-to-day care is insufficient.
  • Matter of Jonathan E. [John E.], 149 AD3d 1197 (3d Dept 2017)
    Provides the crucial language, quoted in Liam DD., that the presumption cannot be rebutted by showing that the child was well cared for and not in danger; underscores the requirement of sustained rehabilitation to rebut.
  • Matter of Carter B. [Logan D.], 154 AD3d 1323 (4th Dept 2017), lv denied 30 NY3d 910 (2018)
    Cited for the notion that the court may rely on “common sense” regarding the impairing effects of certain drugs; used to support the Third Department’s refusal to require expert testimony on the effects of methamphetamine.

  D. Right to Counsel and Ineffective Assistance

  • Matter of Parker J. [Beth F.], 2025 NY Slip Op 06533 (2025)
    Recognizes that the right to assigned counsel in certain Family Court proceedings includes a right to effective assistance, and that a remedy may be available for ineffective assistance apparent on the face of the record. Liam DD. acknowledges this development but finds it inapplicable because no such ineffectiveness appears on the record.
  • Matter of Skylar P.J. [Kerry M.T.], 204 AD3d 1001 (2d Dept 2022) and Matter of Ricardo T., Jr. [Ricardo T., Sr.], 172 AD3d 732 (2d Dept 2019)
    Cited by comparison; they deal with ineffective assistance claims in Family Court but do not alter the fundamental jurisdictional rule that a notice of appeal must be filed to invoke appellate review.

  VI. Clarifying Key Legal Concepts

  1. “Neglect” vs. “Imminent Danger”

  Neglect in New York is not limited to situations where a child is already harmed. The law is preventive:

  • “Imminent danger” means the risk is serious and about to happen, not remote or speculative.
  • A single serious lapse—such as caring for a young child while actively using methamphetamine, or abruptly rendering the child homeless without necessities—can qualify as neglect if it creates such imminent danger.

  2. “Minimum Degree of Care”

  The law does not demand perfection. The benchmark is:

  • What a reasonable, prudent parent, faced with similar circumstances, would do.
  • If the parent’s conduct falls below this floor (by, for example, ignoring known risks from substance use or violating a safety plan designed to protect the child), a neglect finding can be made.

  3. “Prima Facie Case” and Presumptions

  A prima facie case is evidence sufficient, if uncontradicted, to prove a claim. Under § 1046(a)(iii):

  • Once DSS proves repeated drug misuse capable of impairing judgment, it has established a prima facie case of neglect.
  • This shifts the burden to the parent to present evidence rebutting the presumption—typically by showing active rehabilitation efforts.

  4. “Jurisdictional” Requirement and Notice of Appeal

  When a requirement is described as “jurisdictional”:

  • The court has no legal power to act unless the requirement is met.
  • Filing and serving a notice of appeal is such a requirement; if it is not done, the appellate court cannot hear the case, even if it wishes to, and even if counsel’s performance was deficient.

  5. “Affirmative Relief” to Nonappealing Party

  “Affirmative relief” means changing a judgment or order in favor of the party—e.g., reversing or vacating a finding of neglect. The rule from Hecht is:

  • A party who has not appealed typically cannot receive such relief.
  • Exception: where granting full relief to an appealing party necessarily requires altering the order as to a nonappealing party (not the case in Liam DD.).

  6. “Effective Assistance of Counsel” in Family Court

  After Parker J., certain Family Court litigants have:

  • A statutory right not merely to any lawyer, but to a lawyer whose performance meets a basic standard of effectiveness.
  • If counsel’s ineffectiveness is clearly visible on the record, an appellate court may grant a remedy (e.g., remand for a new hearing).

  However, Liam DD. confirms:

  • This right does not automatically reopen closed jurisdictional defects (e.g., failure to file a notice of appeal).
  • The ineffectiveness must be evident “on the face of the record” to trigger relief on direct appeal.

  VII. Likely Impact and Future Implications

  A. For Substance-Use-Based Neglect Cases

  The opinion strengthens and clarifies the use of Family Ct Act § 1046(a)(iii):

  • Courts may rely on common-sense judgments about substances like methamphetamine without expert testimony.
  • Prior indicated reports—particularly when they show the same or related substance misuse over time—will be powerful evidence of “repeated” misuse and lack of sustained rehabilitation.
  • Parents cannot rebut the presumption simply by showing that:
    • The child appears healthy.
    • Basic needs are met.
    • The child was not present when drugs were used.

  Expect DSS attorneys to:

  • Routinely introduce certified records of prior indicated reports to establish patterns of use.
  • Highlight violations of safety plans as corroborative evidence of risk and lack of insight.

  B. For Safety Plans and Case Planning

  The decision signals that:

  • Safety plans, when clearly explained, can play a pivotal evidentiary role in neglect adjudications.
  • Agencies should ensure parents understand:
    • That compliance is mandatory.
    • The consequences of violation.
  • Written plans are not strictly required, but they remain best practice to reduce ambiguity and later disputes about the plan’s content.

  C. For Appellate Practice in Family Court Matters

  Matter of Liam DD. is a strong reminder that:

  • Timely filing and service of a notice of appeal is essential.
  • Nonappealing parties cannot expect the appellate court to adjust orders in their favor, even in the “interest of justice,” unless necessary to provide full relief to an appealing party.
  • Ineffective assistance claims must be carefully framed and tied to errors apparent on the record; they are not a cure-all for procedural defaults.

  D. For Parents with Substance Use Disorders

  The opinion highlights that:

  • Acknowledged relapse—particularly with a dangerous substance like methamphetamine—is treated seriously in child protection law.
  • However, the law also carves out an important path: parents who can show they are voluntarily and regularly participating in a rehabilitative program may avoid the statutory presumption and potentially avert or mitigate neglect findings.
  • Engaging early and consistently in treatment is not only medically advisable but legally strategic.

  VIII. Conclusion

  Matter of Liam DD. (Jamie CC.) offers a tightly reasoned reaffirmation and refinement of New York’s neglect jurisprudence. On the procedural side, it insists on the unyielding nature of appellate jurisdictional rules: no notice of appeal, no appellate relief, even in high-stakes Family Court matters, and even in the wake of a newly recognized right to effective counsel. On the substantive side, it robustly applies Family Ct Act § 1046(a)(iii) to parental methamphetamine use, clarifying that:

  • Common-sense inferences about impairment may suffice without expert testimony.
  • Prior indicated reports can transform an apparently “isolated” relapse into “repeated misuse.”
  • Evidence that a child appears well cared for does not, standing alone, rebut the statutory presumption of neglect.
  • Violation of a DSS safety plan, coupled with untreated substance use and resulting instability (such as homelessness), can independently establish imminent danger and justify a neglect finding.

  In the broader legal context, Liam DD. underscores the preventive and protective aims of Article 10. It encourages courts to intervene when risk is real and near, while preserving clarity and rigor in the procedural mechanisms by which such interventions are reviewed. The decision will likely serve as a key reference point in future substance-use-related neglect cases, in litigation over the role and weight of safety plans, and in appellate practice concerning Family Court proceedings.