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Derivative Neglect Finding Reversed—Operative Principles Explained

The Third Department reversed Family Court, finding the evidence insufficient to support an allegation of derivative neglect. The theory below was that the alleged abuse of one child, Dominick, was serious enough to warrant a finding of derivative neglect with respect to a child (Brad) who had not been born at the time of the alleged neglect of Dominick.  In the course of the decision, the court explained the operative principles:

Pursuant to Family Ct Act § 1046 (a) (i), “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the respondent.” However, “[e]vidence of neglect of one child typically may not serve as the sole basis for a finding of neglect [of another child, unless] the nature of the direct [neglect], notably its duration [and] the circumstances surrounding its commission[,] . . . evidence[s] fundamental flaws in the respondent’s understanding of the duties of parenthood” … . — flaws that are “so profound as to place any child in his or her care at substantial risk of harm” … . Contrary to the father’s assertion, petitioner’s failure to commence a direct neglect proceeding against him with respect to Dominick does not bar petitioner from maintaining this derivative neglect proceeding against him with respect to Brad. Similarly, the fact that Brad had yet to even be conceived — much less born — at the time of the home invasion or the search of the father’s residence is not dispositive, as the relevant inquiry is whether the evidence of the direct neglect of one child, i.e., Dominick, “is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists” … . Matter of Brad I (Tiana K), 2014 NY Slip Op 03555, 3rd Dept 5-15-14

 

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