Neglect Based on Failure to Act on Prenatal Substance Abuse and Refusal of Newborn Drug Screening

1. Introduction

Matter of Kashmir JJ. (Shawn JJ.) (2026 NY Slip Op 02019) is a Third Department neglect decision arising under Family Ct Act article 10. The Broome County Department of Social Services (petitioner) filed a neglect petition concerning an infant born in 2022 after a report that the mother had a known substance-use history and the newborn exhibited withdrawal-like symptoms requiring a prolonged NICU hospitalization. The father (Shawn JJ.) appealed from fact-finding and dispositional orders adjudicating neglect and continuing placement with maternal grandparents, along with conditions including random drug screens and parenting classes.

The central issues were whether petitioner proved neglect by a preponderance of the evidence where (i) the father allegedly failed to take sufficient protective measures despite awareness of the mother’s drug use during pregnancy, and (ii) both parents refused drug testing for themselves and refused to consent to a newborn drug screen—leaving evidentiary “gaps” about exposure and withdrawal.

2. Summary of the Opinion

The Appellate Division affirmed both the fact-finding and dispositional orders. It held there was a sound and substantial basis for Family Court’s neglect finding under Family Ct Act § 1012(f)(i), emphasizing that:

  • The father admitted he knew the mother had used drugs, yet left the infant in her care and could not articulate a concrete relapse/contingency plan.
  • The parents’ refusal to consent to a newborn drug screen stalled treatment while clinicians ruled out other causes; after other diagnoses were excluded, the infant was treated with morphine and had symptoms consistent with withdrawal.
  • The father refused DSS-requested drug screens and was later charged after a traffic stop yielded an envelope consistent with heroin packaging and fentanyl in his wallet.

As to disposition, the Court upheld continued placement with maternal grandparents and service conditions (drug testing, parenting classes, and participation in DSS-identified services), rejecting the claim of improper delegation because DSS must craft a tailored service plan and the order did not condition visitation on those services.

3. Analysis

A. Precedents Cited

Neglect elements and burden of proof

  • Matter of Raquel ZZ. [Angel ZZ.], 216 AD3d 1242 (3d Dept 2023): supplied the two-part neglect framework—impairment or imminent danger plus parental failure to exercise a minimum degree of care—applied as the governing standard.
  • Matter of N'Thai N. [Mali N.], 242 AD3d 1313 (3d Dept 2025) and Matter of Rosaliee HH. [Samantha HH.], 221 AD3d 1299 (3d Dept 2023): reinforced the same neglect formulation and supported the Court’s articulation of the required proof by a preponderance of the evidence.
  • Matter of Joseph GG. [Chrystal FF.], 227 AD3d 1238 (3d Dept 2024): supplied the “reasonable and prudent parent” lens for assessing whether conduct fell below a minimum degree of care.
  • Matter of Jahkell SS. [Victoria SS.], 237 AD3d 1416 (3d Dept 2025): underwrote the highly deferential appellate posture toward Family Court’s credibility determinations and factual findings (“sound and substantial basis”).

Neglect based on exposure to parental substance abuse and protective failures

  • Matter of Jarrett SS. [Jade TT.â​​Scott SS.], 183 AD3d 1031 (3d Dept 2020): cited to support that the record can sustain a neglect finding where parental conduct and circumstances demonstrate risk under § 1012(f)(i), even when proof is circumstantial and dependent on credibility determinations.
  • Matter of Kingston V. [Javon V.], 234 AD3d 1056 (3d Dept 2025), lv dismissed 43 NY3d 951 (2025): cited generally in support of affirming neglect determinations where the record demonstrates impaired/imminently impaired condition linked to parental failures.
  • Matter of Misha W. [Melissa R.], 242 AD3d 759 (2d Dept 2025) and Matter of Camden J. [William J.], 167 AD3d 1346 (3d Dept 2018): supported the proposition that a parent’s awareness of another caregiver’s drug use, coupled with leaving a child in that caregiver’s care without adequate protection, can constitute neglect.
  • Matter of Leo RR. [Joshua RR.], 213 AD3d 1190 (3d Dept 2023): used as a contrast (“compare”) indicating that the facts here sufficiently demonstrated imminent danger (most notably the NICU hospitalization and stalled treatment), even though the record did not definitively establish withdrawal or paternal drug use due to the parents’ refusals.

Disposition, best interests, and service conditions

  • Matter of Jaylin XX. [Jamie YY.], 216 AD3d 1224 (3d Dept 2023): supplied the standard that dispositional orders must be consistent with the child’s best interests and supported by a sound and substantial basis in the record.
  • Matter of Asiah S. [Nancy S.], 212 AD3d 1062 (3d Dept 2023), lv denied 39 NY3d 913 (2023): supported continued placement with relatives where the record supports that arrangement as serving the child’s best interests.
  • Matter of Moses M. [Melissa M.], 237 AD3d 825 (2d Dept 2025), lv denied 44 NY3d 901 (2025) and Matter of Kaitlyn SS. [Antonio UU.], 184 AD3d 961 (3d Dept 2020): supported the imposition of drug testing and parenting education requirements when the record demonstrates concerns about safety, sobriety, and parenting capacity.
  • Matter of Jack V. [Jack U.], 243 AD3d 1174 (3d Dept 2025): central to the Court’s rejection of the “impermissible delegation” argument; DSS may be directed to implement services because it must create a plan “tailored” to the parent’s situation.
  • Matter of Sandra DD. [Kenneth DD.], 185 AD3d 1259 (3d Dept 2020) and Matter of Logan C. [John C.], 169 AD3d 1240 (3d Dept 2019): cited generally to support that service-plan language does not necessarily delegate judicial authority improperly, particularly where visitation is not conditioned on compliance.

Evidentiary ruling: medical records and hearsay

  • Matter of L.K. [C.K.], 246 AD3d 660 (1st Dept 2026) and Matter of Zackery S. [Stephanie S.], 170 AD3d 1594 (4th Dept 2019): supported admission of the child’s medical records over a hearsay objection because the statements were relevant to diagnosis and treatment.
  • People v Maisonette, 192 AD3d 1325 (3d Dept 2021), lv denied 37 NY3d 966 (2021): reinforced the treatment/diagnosis rationale for admitting medical-record content notwithstanding hearsay concerns.

B. Legal Reasoning

The Court applied the statutory neglect framework and focused on imminent danger to the newborn linked to the father’s failure to exercise a minimum degree of care. Several reasoning moves are notable:

  1. Risk can be proven without definitive toxicology where parents themselves block testing. The Court acknowledged that the record did not “definitively” show withdrawal at birth or that the father used illicit substances. But it treated the asserted “gaps” as largely self-created: the parents refused a newborn drug screen and the father refused requested drug screens. The legal consequence was that petitioner could still prevail on imminent-danger proof grounded in circumstances (NICU hospitalization; symptoms consistent with withdrawal; refusal of screening that delayed care; observed paraphernalia; and subsequent fentanyl-related charge).
  2. Minimum-degree-of-care analysis centered on protective capacity. Even crediting the father’s denial of personal drug use, he admitted knowledge of the mother’s drug use and failed to articulate or implement a safety plan. The Court characterized this as not what a “reasonable and prudent parent” would do under the circumstances.
  3. Medical jeopardy mattered independently of definitive diagnosis. The refusal to allow screening did not merely complicate proof; it affected the child’s medical management. Clinicians paused treatment while uncertain what substances might be in the infant’s system, and the infant ultimately required morphine after other diagnoses were ruled out. This clinical course bolstered the finding of imminent danger.
  4. Disposition followed noncompliance and ongoing concerns. Continued placement with maternal grandparents was upheld based on the father’s lack of compliance with recommended services (including drug testing) and the articulated benefit of parenting classes even for a parent with older children (to remain current on child development and safety).
  5. No improper delegation where DSS implements a tailored plan and visitation is not conditioned. The Court treated the “services deemed appropriate by petitioner” clause as permissible because DSS has the duty to develop an individualized service plan and because the order did not make visitation contingent on completing those services.

C. Impact

This decision’s practical significance is its clear approval of a neglect theory grounded in protective failure and medical-risk amplification when parents refuse drug screening:

  • Refusal-to-test can strengthen, not defeat, imminent-danger findings. While the Court did not adopt a per se rule that refusal equals neglect, it treated refusal—especially where it delayed neonatal treatment—as probative of risk and as undermining appellate arguments about missing proof.
  • Fathers/secondary caregivers face exposure for non-protective conduct. Even absent proof the father used drugs, awareness of the mother’s use and the lack of a concrete protective plan supported neglect.
  • Disposition orders may include broad service participation language. The decision reinforces Third Department acceptance of DSS implementation discretion where the plan must be tailored and where the court does not condition visitation on compliance.

4. Complex Concepts Simplified

Neglect (Family Ct Act § 1012[f][i])
A finding that a child’s condition has been harmed—or is at imminent risk of harm—because a parent failed to provide at least a minimum level of care (supervision/guardianship), judged against what a reasonable, prudent parent would do.
Preponderance of the evidence
The petitioner must show something is more likely true than not (a lower burden than “beyond a reasonable doubt”).
Imminent danger of impairment
The law does not require waiting for actual injury; a demonstrated, near-term risk to the child’s wellbeing can suffice.
NICU and neonatal withdrawal
NICU is intensive care for newborns. “Withdrawal” refers to symptoms a newborn may display after in-utero exposure to certain substances; here, clinicians considered withdrawal among possible explanations and treated the infant after ruling out other causes.
Hearsay and medical records
Although out-of-court statements are generally inadmissible to prove truth, medical records and statements made for diagnosis/treatment are often admitted because they are considered reliable for clinical purposes.
Impermissible delegation
A court cannot hand over its core judicial decision-making (e.g., whether a parent may have visitation). But a court may direct an agency to develop and implement a tailored service plan, so long as the order retains judicial control over key rights and does not improperly condition visitation.

5. Conclusion

Matter of Kashmir JJ. (Shawn JJ.) affirms that a neglect adjudication may rest on a parent’s failure to protect a newborn from risks associated with known prenatal substance use—particularly where the parent also refuses drug screening that could clarify diagnosis and enable timely treatment. The decision further supports robust dispositional conditions (including random drug testing and parenting education) and approves service-plan implementation language where DSS must tailor services and visitation is not conditioned on compliance. In the broader child-protection landscape, the case underscores that courts may treat testing refusals and lack of protective planning as powerful evidence of imminent danger and inadequate parental care.