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FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN.

The Second Department, reversing Family Court, determined, in the absence of a fact-finding proceeding, father should not have been deemed to have derivatively neglected his children based solely upon his guilty plea to endangering the welfare of one of his children:

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“A criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct” … . Family Court Act § 1012(f)(i) defines a neglected child as one “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care” … by, inter alia, “unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof.” Here, since the father’s conviction for endangering the welfare of a child was based upon the same acts alleged to constitute neglect, the father’s conviction established, prima facie, that Blima M. was a neglected child … . …

However, the Family Court erred in granting that branch of ACS’s [Administration for Children’s Services’] motion which was for summary judgment determining that the father derivatively neglected Hersh M., Jacob M., Aron M., Moshe M., and Dina M. While proof of the neglect of one child shall be admissible evidence on the issue of the neglect of any other child of, or the legal responsibility of, the respondent … , a finding of abuse or neglect as to one sibling does not mandate a finding of derivative abuse or neglect as to the other siblings … . Matter of Blima M. (Samuel M.), 2017 NY Slip Op 03954, 2nd Dept 5-17-17

 

FAMILY LAW (FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN)/NEGLECT (FAMILY LAW, FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN)/DERIVATIVE NEGLECT (FAMILY LAW, FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN)/CRIMINAL LAW (ENDANGERING THE WELFARE OF A CHILD, FAMILY LAW, FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN)

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THE DENIAL OF THE FOIL REQUEST DID NOT ADVISE PETITIONER OF THE AVAILABILITY OF AN ADMINSTRATIVE APPEAL; THEREFORE SUPREME COURT SHOULD NOT HAVE DISMISSED THE ARTICLE 78 PETITION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (SECOND DEPT).
THE SCHOOL DISTRICT’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT NEGLIGENT HIRING AND RETENTION OF A TEACHER’S AIDE AND NEGLIGENT SUPERVISION OF PLAINTIFF STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).
HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED.
DEFENDANTS DID NOT SUBMIT THEIR CERTIFICATE OF INCORPORATION AND THE PRINTOUT FROM THE DEPARTMENT OF STATE WAS NOT IN ADMISSIBLE FORM; DEFENDANTS’ MOTION TO CHANGE VENUE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT CLAIMED HE TOOK POSSESSION OF THE VICTIM’S GUN AND FIRED AFTER THE VICTIM FIRED AT HIM; DEFENDANT WAS ACQUITTED OF ATTEMPTED MURDER, ATTEMPTED ASSAULT AND ASSAULT BUT CONVICTED OF CRIMINAL POSSESSION OF A WEAPON; THE JURY SHOULD HAVE BEEN INSTRUCTED ON “TEMPORARY LAWFUL POSSESSION OF A WEAPON;” NEW TRIAL ORDERED (SECOND DEPT).
DEFENDANT WAS MISNAMED IN THE COMPLAINT BUT WAS TIMELY SERVED; THE AMENDED COMPLAINT WITH THE CORRECT NAME, ALTHOUGH SERVED AFTER THE STATUTE OF LIMITATIONS HAD RUN, SHOULD NOT HAVE BEEN DISMISSED; THE AMENDED COMPLAINT SHOULD HAVE BEEN DEEMED TIMELY SERVED AND FILED NUNC PRO TUNC (SECOND DEPT).
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