In the Matter of Danielle Smith
128 Misc. 2d 976, 492 N.Y.S. 2d (N.Y. Family Ct. 1985)
The county Department of Social Services brought this action to
have Danielle Smith declared a "neglected child." This apparently was a
first step toward removing the child, at least temporarily, from the
custody of her mother. The action was based solely upon the
prenatal conduct of the mother.
During her pregnancy the mother drank 10 alcoholic beverages on an
average of 3 or 4 days a week.
The Department urged, first, that Danielle was a neglected child
because her mother's drinking had actually caused FAS. The court
concluded that there was insufficient evidence that the child actually had
FAS.
The Department also argued that Danielle was a neglected child
simply because her mother's drinking had created a risk of FAS.
The court agreed.
"Although the proof in the instant proceeding is insufficient to
establish that the [mother's] abuse of alcohol, during pregnancy, actually
caused fetal alcohol syndrome at the time of birth, the Court,
nevertheless, holds that such proof was sufficient to establish 'imminent
danger' of impairment of physical condition, including the possibility of
fetal alcohol syndrome, to the unborn child."
492 N.Y.S. 2d at 334. Under state law creating an imminent danger of
impairment was sufficient to support a finding of child neglect.
The court also held that the fetus was a "person" within the
meaning of the state Family Court Act.