hair follicle test in New York

2023Footnote 3: The mother points out, with the support of the father, that where a parent "is voluntarily and regularly participating in a rehabilitative program," his or her drug use does not establish neglect in a Family Ct Act article 10 proceeding absent proof "that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired" (Family Ct Act § 1012 [f] [i] [B]; see Family Ct Act § 1046 [a] [iii]; Matter of Keira O. , 44 AD3d 668, 670 [2d Dept 2007]).

2023Footnote 3: The mother points out, with the support of the father, that where a parent "is voluntarily and regularly participating in a rehabilitative program," his or her drug use does not establish neglect in a Family Ct Act article 10 proceeding absent proof "that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired" (Family Ct Act § 1012 [f] [i] [B]; see Family Ct Act § 1046 [a] [iii]; Matter of Keira O. , 44 AD3d 668, 670 [2d Dept 2007]).

2013Contrary to the Family Court’s determination, its statement in open court on August 7, 2012, that the individual designated to perform the hair follicle test would find a hair on the father’s “body wherever it is and have it tested” does not qualify as the lawful order of the court clearly expressing an unequivocal mandate which is necessary to support a finding of contempt {see Delijani v Delijani, 73 AD3d 972, 973 [2010]; see also Matter of Formosa v Litt, 91 AD3d 644, 645 [2012]).

2013Contrary to the Family Court’s determination, its statement in open court on August 7, 2012, that the individual designated to perform the hair follicle test would find a hair on the father’s “body wherever it is and have it tested” does not qualify as the lawful order of the court clearly expressing an unequivocal mandate which is necessary to support a finding of contempt {see Delijani v Delijani, 73 AD3d 972, 973 [2010]; see also Matter of Formosa v Litt, 91 AD3d 644, 645 [2012]).

2013Contrary to the Family Court’s determination, its statement in open court on August 7, 2012, that the individual designated to perform the hair follicle test would find a hair on the father’s “body wherever it is and have it tested” does not qualify as the lawful order of the court clearly expressing an unequivocal mandate which is necessary to support a finding of contempt {see Delijani v Delijani, 73 AD3d 972, 973 [2010]; see also Matter of Formosa v Litt, 91 AD3d 644, 645 [2012]).

2013Contrary to the Family Court’s determination, its statement in open court on August 7, 2012, that the individual designated to perform the hair follicle test would find a hair on the father’s “body wherever it is and have it tested” does not qualify as the lawful order of the court clearly expressing an unequivocal mandate which is necessary to support a finding of contempt {see Delijani v Delijani, 73 AD3d 972, 973 [2010]; see also Matter of Formosa v Litt, 91 AD3d 644, 645 [2012]).

2016Further, while Family Court made a fleeting reference during one of the court appearances to the mother’s history of drug use, in the absence of the test results or any record evidence of recent drug use by the mother, there was not enough information before the court to permit it to determine whether unsupervised visitation would be inimical to the child’s welfare or whether supervised visitation was otherwise necessary to ensure the child’s best interests (see Matter of Fish v Fish, 112 AD3d 1161, 1162 [2013]).