FAMILY LAW - NEGLECT & ABUSE

Matter of Madeleine B. (Peter B.); 2021 NY Slip Op 05332; Decided on October 6, 2021; Appellate Division, Second Department:

"In related proceedings pursuant to Family Court Act article 10, the father appeals from (1) an order of fact-finding of the Family Court, Richmond County (Gregory L. Gliedman, J.), dated July 31, 2019, and (2) an order of disposition of the same court dated August 29, 2019. The order of fact-finding, after a fact-finding hearing, found that the father neglected the child Madeleine B. and derivatively neglected the child Christian B. The order of disposition, upon the order of fact-finding and after a dispositional hearing, inter alia, released the children to the custody of the mother with supervision by the petitioner for a period of 12 months and directed the father to cooperate with the petitioner's supervision during that period.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,

ORDERED that the appeal from so much of the order of disposition as released the children to the custody of the mother with supervision by the petitioner for a period of 12 months and directed the father to cooperate with the petitioner's supervision during that period is dismissed as academic, without costs or disbursements; and it is further,

ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

The appeal from so much of the order of disposition as released the subject children to the custody of the mother with supervision by the petitioner for a period of 12 months and directed the father to cooperate with the petitioner's supervision during that period must be dismissed as academic, as the period of supervision has expired (see Matter of Kyanna T. [Winston R.], 99 AD3d 1011, 1013). The findings of neglect and derivative neglect, however, constitute a permanent and significant stigma which might indirectly affect the father's status in future proceedings. Therefore, the appeal from the portion of the order of disposition that brings up for review the findings of neglect and derivative neglect is not academic (see id. at 1013).

The petitioner commenced these related proceedings pursuant to Family Court Act article 10, alleging that the mother and the father neglected the subject children, Madeleine B. and Christian B. At the fact-finding hearing, evidence was adduced demonstrating that on January 21, 2018, the father, while in an intoxicated state, perpetrated acts of domestic violence against the mother while the children were present in the home and Madeleine witnessed the father choking the mother. Madeleine was crying and urinated on herself. Evidence was also adduced at the hearing that the father was intoxicated during an earlier incident of domestic violence involving the mother. After the hearing, the Family Court found that the father neglected Madeleine and derivatively neglected Christian.

"At a fact-finding hearing in a neglect proceeding pursuant to Family Court Act article 10, a petitioner has the burden of proving by a preponderance of the evidence that the subject child was neglected" (Matter of Kenya R. [Edmindo R.], 129 AD3d 978, 979 [internal quotation marks omitted]; see Family Ct Act § 1046[b][i]). In making a finding of neglect, "[t]he Family Court's assessment of the credibility of witnesses is entitled to considerable deference" (Matter of Laila S. W. [Loren S.], 144 AD3d 694, 695 [internal quotation marks omitted]). There is no basis in the record here to disturb the Family Court's determination of the factual issues.

Family Court Act § 1046(a)(iii) provides that an agency establishes a prima facie case of neglect where it presents "proof that a person repeatedly misuses . . . alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of . . . intoxication." In cases where this presumption is triggered, the agency is not required to establish that the child suffered actual harm or was at imminent risk of harm (see Matter of Nasiim W. [Keala M.], 88 AD3d 452, 453; Matter of Arthur S. [Rose S.], 68 AD3d 1123, 1124). Further, "[e]ven a single act of domestic violence, either in the presence of a child or within the hearing of a child, may be sufficient for a neglect finding" (Matter of Jermaine T. [Jairam T.], 193 AD3d 943, 945). Accordingly, the father's neglect of Madeleine was established.

To determine whether derivative neglect is present, the evidence of abuse or neglect of one child must indicate a fundamental defect in the parent's understanding of the duties of parenthood (see Matter of Jelani B., 54 AD3d 1032, 1033). Here, a derivative finding of neglect as to Christian was warranted since the father committed acts of domestic violence while Christian was in the home (see Matter of Monica C.M. [Arnold A.], 107 AD3d 996, 997), thereby evincing a flawed understanding of his duties as a parent (see Matter of Harmonee B. [Roy B.], 161 AD3d 852).

The father's remaining contentions are without merit."

FAMILY COURT - SUMMARY JUDGMENT FOR DERIVATIVE NEGLECT

Derivative neglect means that if you are a danger to one child, then you are a danger to all children. It is basically an accusation that you are a bad parent and should not have any children in your care.

Matter of Elijah G. (Chastity G.), 2020 NY Slip Op 03511, Decided on June 24, 2020, Appellate Division, Second Department:

"As is relevant to these appeals, in 2012, the Administration for Children's Services (hereinafter ACS) filed a petition pursuant to article 10 of the Family Court Act against the mother and the father, alleging that they neglected their child—their only child at that time—based on, inter alia, their failure to follow up on mental health treatment and the extreme unsanitary conditions in the home. Thereafter, findings of neglect, on consent, were entered as to the mother and the father [*2]with respect to that child. Subsequent petitions were filed against the mother and the father shortly after the birth of each of two additional children (hereinafter, collectively with the oldest child, the three oldest children), based on allegations, inter alia, that the mother and the father were not compliant with therapy and mental health treatment. Findings of neglect as to the mother and the father with respect to the two additional children were entered on consent, and the fact-finding order pursuant to which the findings were entered specified that the neglect findings were entered as to all allegations in the petitions.

Thereafter, ACS filed additional petitions, in 2016 and 2018, respectively (hereinafter the 2016 and 2018 petitions), against the mother and the father, alleging that they derivatively neglected their two youngest children. The three oldest children had been and remained in foster care at the time the 2016 and 2018 petitions were filed and, by January 2017, ACS had filed petitions to terminate the parental rights of the mother and the father as to each of the three oldest children.

In September 2018, ACS moved for summary judgment on the 2016 and 2018 petitions alleging that the mother and the father derivatively neglected the two youngest children. ACS asserted that the conduct that formed the basis of the findings of neglect as to the three oldest children was so proximate in time to these derivative proceedings that it could reasonably be concluded that the condition still existed. The Family Court granted the motion for summary judgment, and the mother and the father separately appeal.

Although there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, summary judgment pursuant to CPLR 3212 may be granted in such a proceeding when there is no triable issue of fact outstanding (see Family Ct Act § 165[a]; Matter of Jaylhon C. [Candace C.], 170 AD3d 999, 1000-1001).

We agree with the Family Court's determination that ACS established its entitlement to judgment as a matter of law on the issue of whether the mother and the father derivatively neglected the two youngest children (see Family Ct Act § 1012[f][i]). In support of its motion, ACS submitted several prior orders of the court finding that the mother and the father neglected the three oldest children and that both the mother and the father suffered from mental health issues and continually failed to comply with recommended mental health services (see Matter of Jaylhon C. [Candace C.], 170 AD3d at 1001; Matter of Shay-Nah FF. [Theresa GG.], 106 AD3d 1398, 1400). The orders submitted demonstrated that the none of the three oldest children were returned to the care of the mother and the father, and that the conditions that resulted in the removal of those children continued to exist at the time ACS filed its motion for summary judgment (see Matter of A'Nyia P.G. [Qubilah C.T.G.], 176 AD3d 495, 496). This evidence of neglect indicates a fundamental defect in the mother's and the father's understanding of the duties of parenthood, warranting a finding of derivative neglect as to the two youngest children (see Family Ct Act § 1046[a][i]; Matter of Jaylhon C. [Candace C.], 170 AD3d at 1001; Matter of Hope P. [Stephanie B.], 149 AD3d 947, 947). The prior conduct was so proximate in time to the derivative neglect proceedings that it can reasonably be concluded that the conditions still exist (see Matter of Jaylhon C. [Candace C.], 170 AD3d at 1001; Matter of Dayyan J.L. [Autumn M.], 131 AD3d 1243, 1244-1245).


Accordingly, ACS established, prima facie, that the mother and the father derivatively neglected the two youngest children through their failure to resolve the same issues that were the basis for the prior findings of neglect as to the three oldest children (see Matter of Jaylhon C. [Candace C.], 170 AD3d at 1001; Matter of Annalise L. [Jalise P.], 170 AD3d 835, 837). In response to ACS's prima facie showing of entitlement to judgment as a matter of law, the mother and the father failed to raise a triable issue of fact."