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Child Unborn When Sibling Found to Be Neglected Properly Found to Be Derivatively Neglected—Summary Judgment Properly Granted

The Second Department determined Family Court correctly granted summary judgment finding a child not yet born when a sibling was adjudicated neglected to be derivatively neglected.  The court explained the analytical criteria, including when summary judgment in such a case is warranted:

In determining whether a child born after the underlying acts of neglect should be adjudicated as a child who was derivatively neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct that formed the basis for a finding of neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists … . “In such a case, the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future” … . “[I]n an appropriate case, the Family Court may enter a finding of neglect on a summary judgment motion in lieu of holding a fact-finding hearing upon the petitioner's prima facie showing of neglect as a matter of law and the respondent's failure to raise a triable issue of fact in opposition to the motion” … . Matter of Alicia P …, 2014 NY Slip Op 09140, 2nd Dept 12-31-14


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