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ALTHOUGH TWO CHILDREN HAD BEEN REMOVED FROM MOTHER’S CARE AFTER NEGLECT FINDINGS AND MOTHER ALLEGEDLY CONCEALED HER PREGNANCY AND FAILED TO SEEK APPROPRIATE PRENATAL CARE, SUMMARY JUDGMENT FINDING MOTHER HAD NEGLECTED HER NEWBORN WAS NOT APPROPRIATE; MATTER REMITTED TO BE HEARD BY A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, reversing Family Court, determined summary judgment finding respondent mother had neglected and derivatively neglected her newborn baby was not appropriate. Two children had been removed from mother’s care based on neglect findings,. Mother allegedly had concealed her pregnancy and allegedly had not sought appropriate prenatal case. But triable issues of fact remained. The matter was sent back to be heard by a different judge:

Upon review of the record and considering the nature of the prior neglect findings, the passage of time, and the questions concerning the degree of progress made by respondent over that time, we find that there are triable issues of fact precluding summary judgment (see CPLR 3212 [b] …). Petitioner’s motion was centered upon the two prior findings of neglect and respondent’s failure to abide by the corresponding orders of disposition … . However, the petition itself acknowledged that respondent had recently become more compliant with petitioner, resulting in expanded visitation with her children, and had been making improvements in her engagement with services and communication skills. According to the petition, respondent had put together a safety plan for the subject child to live with her, and petitioner saw this as “a strength” and was “hopeful in working with” respondent on this plan. Further, petitioner pointed out in opposition to the motion that she had improved her housing and employment situation and ended a relationship with an abusive partner…. .

Accordingly, the matter must be remitted for a fact-finding hearing concerning the allegations in the petition … . Under the circumstances, we find it appropriate to remit to a different judge for the purpose of conducting the hearing. Matter of Ja’layna FF. (Jalyssa GG.), 2022 NY Slip Op 07271, Third Dept 12-22-22

Practice Point: Summary judgment is almost never appropriate in a child-neglect matter. Here summary judgment finding mother had neglected her newborn based on neglect findings re: two other children and allegations mother had concealed her pregnancy and failed to seek appropriate prenatal care was reversed. There existed several triable issue of fact, including recent cooperation by mother. The matter was remitted for a hearing in front of a different judge.

 

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