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Summary Judgment Finding Derivative Neglect Should Not Have Been Granted

The Third Department determined Family Court should not have granted summary judgment finding derivative neglect. Despite the recent finding of neglect of three other children (by consent), there were questions of fact about whether the conditions leading to the previous neglect determination were being addressed:

Family Court erred in granting summary judgment because triable issues of fact remain. Summary judgment is rarely used in Family Court proceedings, and is only appropriate when no triable issue of fact exists … . While proof that respondent previously neglected three other children was admissible on the issue of whether he neglected Karm’ny (see Family Ct Act § 1046 [a] [i]), such proof alone typically is not sufficient to establish derivative neglect … . “Derivative 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” … . The prior neglect determination here occurred less than three months before the instant petition was filed, sufficiently proximate so as to give rise to an inference that the conditions leading to such determination still existed … . Despite that inference, the testimony from the Family Ct Act § 1028 hearing raised questions of fact regarding whether respondent was appropriately dealing with those conditions… . Matter of Karm’ny…, 516250, 3rd Dept 2-27-14

 

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