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Summary Judgment in Neglect Proceeding Based Upon Proceeding Concerning Other Children in Another County Upheld​

In upholding the grant of summary judgment in a neglect proceeding based upon a prior “derivative neglect” determination (based upon drug abuse) with respect to other children in another county, the Third Department wrote:

“Although it is a drastic procedural device, Family Court is authorized to grant summary judgment in a neglect proceeding where no triable issue of fact exists” ….  We note that “evidence of abuse of one child will not, in and of itself, establish a prima facie case of derivative neglect or abuse of another” … . Rather, a prima facie case of “‘[d]erivative neglect is established where the evidence demonstrates an impairment of parental judgment to the point that it creates a substantial risk of harm for any child left in that parent’s care, and the prior neglect determination is sufficiently proximate in time to reasonably conclude that the problematic conditions continue to exist'” … . * * * Here, the prior neglect determination was proximate in time– the order reflecting respondent’s consent to a finding of neglect based upon excessive drug use was entered in January 2012, and petitioner moved for summary judgment in this proceeding less than one month later.  Matter of Alyssa WW … v Cortland County DSS, 514585, 3rd Dept, 5-2-13

 

 

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