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THE DERIVATIVE NEGLECT FINDING WAS BASED ON A PRIOR FINDING MOTHER NEGLECTED THREE OLDER CHILDREN; BUT THE CONDUCT WHICH WAS THE BASIS OF THE PRIOR NEGLECT FINDING WAS NOT DESCRIBED IN THE MOTION PAPERS; THE BURDEN OF PROOF, THEREFORE, NEVER SHIFTED TO MOTHER AND THE MOTION SHOULD HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the burden never shifted to mother in this derivative neglect proceeding. The derivative neglect finding was based upon a prior finding mother neglected three older children. But the order in that case did not describe the conduct that resulted in the “Inadequate guardianship” finding:

… [W]e conclude that the court erred in granting the motion because petitioner’s submissions did not satisfy its initial burden to show that the subject child was derivatively neglected … . To the extent that petitioner relied on the court’s prior order of disposition finding that the mother had neglected the three older children as the basis to support a finding of derivative neglect with respect to the subject child, we note that the prior order merely states that she neglected the older children through “[i]nadequate guardianship, thus placing the children at risk of harm.” Inasmuch as the prior order did not identify what conduct by the mother had been substantiated for purposes of making the “inadequate guardianship” finding with respect to the three older children, petitioner did not establish the egregiousness of that conduct or show that, with respect to the subject child, the potential harmful result of that conduct could be said to reasonably still exist … . In other words, the evidence supplied by petitioner did not establish, as a matter of law, the nature of the mother’s conduct that supported the prior finding of neglect or its surrounding circumstances … . Matter of Ty’Shawn B., 2026 NY Slip Op 04694, Fourth Dept 7-24-26

Practice Point: A motion for summary judgment seeking a derivative neglect finding cannot merely mention a prior “inadequate guardianship” finding regarding mother’s other children with no description of the underlying conduct. The moving papers must demonstrate egregious conduct which is ongoing.

 

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