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Neglect Finding Cannot Be Based Upon Judicial Notice of a Drug Conviction

Reversing Family Court, the Second Department explained the pre-requisites for a neglect finding. Here Family Court erroneously made a neglect finding by taking judicial notice of mother’s drug conviction:

Family Court Act § 1051(a) provides that the Family Court may enter an order finding that a child is an abused child or a neglected child on the consent of all parties and the attorney for the child, or following the completion of a fact-finding hearing at which the petitioning agency establishes the allegations of abuse or neglect by a preponderance of the evidence (see Family Ct Act §§ 1044, 1046[b][i]). Further, in appropriate cases, the Family Court may also enter an order finding that a child is an abused child or a neglected child on a motion for summary judgment in lieu of holding a fact-finding hearing, upon the petitioning agency’s prima facie showing of neglect or abuse as a matter of law, and the respondent’s failure to raise a triable issue of fact in opposition to the motion … .

Here, the Family Court did not enter the finding of neglect on the consent of all parties and the attorney for the child, or following the completion of a fact-finding hearing (see Family Ct Act § 1051[a]). Moreover, the Family Court did not enter the finding of neglect upon a motion by the DSS for summary judgment … . Thus, the Family Court, which simply took judicial notice at a conference of a certificate of disposition, lacked the authority to enter a finding of neglect. Matter of Vincent M. (Jamie M.), 2015 NY Slip Op 08170, 2nd Dept 11-12-15

 

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