On February 8, 2011, the Petitioner, the Administration for Children's Services (ACS), moved for summary judgment in this child neglect proceeding filed on April 23, 2010, pursuant to Article 10 of the Family Court Act. Petitioner ACS requested the court to enter a finding of derivative neglect against M. S. (Respondent Mother) as to the subject child, Emani (DOB 03/30/2010), as a matter of law, without hearing, based on the court's prior finding of neglect [*2]against Respondent Mother, neglect/abuse petition NA 10597-98/2009, as to the older children, Lyric (DOB 05/05/08), and Elijah (DOB 03/27/07).

In support of its motion, ACS stated that the derivative neglect petition, NN 10707/2010, was filed in close proximity to the finding of child neglect in NA 10597-98/2009, and the condition of Respondent Mother's faulty parenting, which formed the basis for the neglect finding, continued to exist. On March 17, 2011, the Attorney for the Child Emani, filed an Affirmation opposing ACS's motion for summary judgment on the ground that triable issues of fact existed as to the alleged derivative neglect of Emani by Respondent Mother. The Attorney for the Child stated that Respondent Mother had accepted services and did not exhibit such an impaired level of parental judgment as to create a substantial risk of harm to the infant, and therefore, ACS had not met its burden of establishing a primafaciecase of derivative neglect. On March 18, 2011, Respondent Mother's Attorney filed responsive papers opposing ACS's motion for summary judgment, stating that Petitioner ACS had not shown a continuing course of conduct by Respondent Mother so proximate in time to the prior neglect finding to warrant entry of a finding of derivative neglect as to the infant Emani, as a matter of law, and, further, that triable issues of facts were present in this matter, precluding a summary judgment. For reasons stated below, the court denies ACS's motion for summary judgment.

On April 29, 2009, ACS filed a child abuse/neglect petition, NA 10597-98/2009, against Respondent Mother, alleging that:

"Elijah (D.O.B. 3/27/2007) and Lyric (D.O.B. 5/5/2008) are children

less than eighteen years of age whose physical, mental or emotional

conditions have been impaired or are in imminent danger of becoming

impaired as a result of the failure of their Mother, M. S. (D.O.B.

3/2/1988), to exercise a minimum degree of care in supplying them

with proper supervision or guardianship by unreasonably inflicting or

allowing to be inflicted harm, or a substantial risk thereof, or by misusing

a drug or drugs, and not voluntarily and regularly participating in a

rehabilitative program, or by any other acts of a similarly serious nature

requiring the aid of the Court within the purview of the FCA § 1012 (f) (i) (B),

in that:

1. On April 28, 2009, the shelter director from Help USA reported

that the Respondent Mother left a hot curling iron accessible to the subject

child Lyric who subsequently sustained a burn on her leg.

2. On April 29, 2009, a doctor from Bellevue Hospital reported to

ACS CPS that the subject child Lyric had sustained multiple second

degree burns. The doctor further stated that the burns could have

resulted from a curling iron but were not by accidental means.

3. On April 28, 2009, ACS CPS observed the subject child Lyric to have

five burns on her body. ACS CPS observed a burn on the child's inner

left thigh to be approximately two inches wide, fleshy pink in color; on her [*3]

inner right thigh the child had two burns, one approximately four inches

in length, fleshy pink in color and bleeding, the second approximately two

inches in length, fleshy pink in color; on her left knee a burn approximately

a half inch, round and scabbed over; on her right index finger a blistering

burn approximately one and one half inches in length.

4. On April 28, 2009, the Respondent Mother admitted to ACS CPS

that she did not seek medical attention for the subject child Lyric's burns.

5. On April 28, 2009, the Respondent Mother admitted to ACS CPS that

she smokes marijuana "whenever I get the urge." Upon information and

belief the Respondent Mother is not voluntarily and regularly participating

in a drug treatment program."

6. Based on the foregoing allegations the subject child Elijah is neglected

or at risk of being abused or neglected.

The court remanded the children Lyric and Elijah to the care and custody of the ACS Commissioner. ACS placed the children in the kinship foster home of their maternal great cousin under the supervision of a contract foster care agency. Lyric received medical care for the burn injuries she had sustained, and Respondent Mother accepted the services offered by ACS. By Order dated November 25, 2009, the court paroled the children Lyric and Elijah to their maternal grandmother, under the supervision of ACS. The court granted Respondent Mother liberal visitation with the children, directing her to remain engaged in services and comply with random drug testing. On March 23, 2010, the court paroled the children to Respondent Mother, under ACS supervision, on condition that she reside with the maternal grandmother, continue participation in a therapeutic parenting program at the foster care agency, engage in and attend therapy consistently, accept visiting nurse services, and cooperate with ACS supervision.

At the fact-finding hearing in NA 10597-98/2009, the court heard testimony from the ACS caseworker, Danette Ruiz, and a physician, Dr. Lori Legano, who was qualified as an expert in pediatric medicine. Respondent Mother's counsel called Dr. Phyllis Dunn Weiner, who was qualified as an expert in pediatric medicine, and Respondent Mother. The court reviewed medical records related to Lyric's injuries and photographs of her burns. It was undisputed that the child Lyric sustained five second degree burns - two on her left leg, two on her right leg and one on her right index finger.

After the hearing, the court issued a decision on December 3, 2010, which found that on April 28, 2009, Respondent Mother left Lyric, then 11 months, and Elijah, 2 years, unsupervised in the living room, in close proximity to hazardous and dangerous conditions that she had created in the bathroom. Respondent Mother had plugged a curling iron into an outlet above the sink, placed the curling iron on top of the sink and left the cord dangling, and ran water for the children's bath. The court held that Respondent Mother had failed to exercise a minimum degree of care in the proper supervision of the children, resulting in harm, and substantial risk of [*4]

harm to her children, sufficient to support a finding of child neglect pursuant to Family Court Act § 1012 (f) (i) (B). The court, however, did not make a finding of child abuse against Respondent Mother in that ACS had not proven, by a preponderance of the evidence, that the burns sustained by the child Lyric were intentionally inflicted by Respondent Mother.

The court also found, by a preponderance of evidence, that Respondent Mother failed to provide the child Lyric with adequate medical care. After finding the 11 month old infant in the bathroom with second degree burns on her legs, Respondent Mother did not take Lyric to a hospital or a doctor for emergency medical care and treated the child's burns herself. The court found that Respondent's failure to seek immediate emergency medical care for Lyric placed the child at additional imminent risk of injury or impairment and this constituted child neglect (Family Court Act § 1012 [f] [i] [A]).

On April 23, 2010, ACS filed the derivative neglect petition, NN 10707/2010, requesting that the court find that the infant Emani was an abused/neglected child, or at risk of becoming abused or neglected. In the new petition, ACS re-iterated the allegations it had made in NA 10597-98/2009 against Respondent Mother as to siblings Lyric and Elijah. ACS added two allegations concerning events since the birth of Emani on March 30, 2010, as follows: 1) ACS staff and staff from Visiting Nurse Services had observed Respondent Mother's home to be in an unsanitary condition, on at least two occasions, most recently on April 18, 2010; and 2) Respondent Mother had failed to participate in drug treatment or random drug testing, and did not inform the program why she was unable to participate, and, further, Respondent Mother failed to appear for two ACS Child Safety Conferences. ACS alleged that Emani's remaining with Respondent Mother posed an imminent risk to the infant's life or health, and requested a remand of the infant to the care and custody of the ACS Commissioner. ACS also filed a motion requesting a modification of the court's Order (NA 10597-98/2009) of March 23, 2010, and, a remand of the children, Lyric and Elijah, to the care and custody of the ACS Commissioner. ACS alleged that Respondent Mother had failed to comply with the terms and conditions of the March 23, 2010 Order paroling the children to her in that she did not continue to attend services at the foster care agency, her home was cluttered and unsanitary, and she had not made herself available to ACS or foster agency caseworkers. The motion was returnable on April 27, 2010, and Respondent Mother appeared. The court denied the motion and ACS's request for a remand of the children. The court ordered ACS to provide homemaker services to Respondent Mother and ordered Respondent Mother to stay in contact with the ACS caseworker by telephone, provide the caseworker with the telephone number for her pediatrician, resume participation in the therapeutic parenting program at the foster care agency, ensure that her apartment was clean and uncluttered, take steps to have her and her doctor complete the application for homemaking services, and attend conferences scheduled by ACS. The court ordered ACS to make announced and unannounced visits to Respondent Mother's home, and directed Respondent Mother to permit the ACS caseworker to have access to the home and the children.

On November 12, 2010, ACS filed an Order to Show Cause again seeking the removal of all three children from the care of Respondent Mother, alleging that she had failed to provide adequate medical care for Lyric, who was hospitalized for the treatment of severe eczema and cellulitis, and for Emani, who was admitted to the hospital as a result of being markedly underweight and diagnosed as failure-to-thrive. After a hearing pursuant to Family Court Act [*5]

§ 1028, the court issued its decision on November 23, 2010. The court found, by a preponderance of evidence, that ACS did not present any evidence of imminent risk as to the

child Emani. Based on the testimony of Dr. Glick, the pediatric dermatologist treating Lyric and the medical records, the court found that Respondent Mother had provided adequate medical care for Lyric's skin conditions, and that ACS did not present sufficient evidence of imminent risk as to the life or health of the child Lyric. The court continued the parole of Lyric and Elijah to Respondent Mother, under ACS supervision.

In addition, after review of Emani's medical records and the testimony of Dr. José, the children's treating pediatrician, the court found that although the infant was not gaining weight or developing in accordance with expected standards. However, the cause of Emani's failure to gain weight was not clear to the medical experts. Even after a two week stay in the hospital, Emani failed to gain weight on a consistent basis. The court found that a strong bond existed between Respondent Mother and the infant, and that removal of this medically fragile infant from the care of Respondent Mother would be harmful to the child. Therefore, the court found ACS had not proven imminent risk to Emani's life or health if she were to remain with Respondent Mother. Accordingly, the court continued the parole of Emani on condition that Respondent Mother keep all medical appointments for the infant and comply with all recommendations concerning her medical treatment. Therefore, the court again denied ACS's request for a remand of the children.

On February 16, 2011, the court continued the parole of Lyric and Elijah to Respondent Mother and directed her to comply with ACS supervision, keep all medical appointments for the children, and ensure that Elijah continued to receive Early Intervention Services.

In its motion for summary judgment filed on February 8, 2011, ACS asks the court to find, as a matter of law, without hearing, that the infant Emani is a derivatively neglected child, based on the court's finding of neglect on December 3, 2010 against Respondent Mother in NA 10597-98/2009 as to the children Lyric and Elijah. ACS alleges that the prior neglect finding is proximate in time to the current derivative neglect proceeding, NN 10707/2010, filed on April 23, 2010, and that the deficient conduct of Respondent Mother continues to exist and creates a substantial risk of harm for the infant Emani.

The court may grant a motion for summary judgment in an Article 10 child protective proceeding "when it has been clearly ascertained that there is no triable issue of fact outstanding; issue finding, rather than issue determination, is its function" (Suffolk County Department of Social Servs. v James M., 83 NY2d 178, 182 [1994] citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Family Court Act § 165 [a]; CPLR 3212). Further, ACS, as the moving party, must establish a prima faciecase of derivative neglect by a preponderance of the evidence (Matter of Suzanne RR., 35 AD3d 1012 [3d Dept 2006]; Family Court Act § 1046 [b] [i]). Moreover, the use of summary judgment remains "a drastic procedural device" (Matter of Hannah UU., 300 AD2d 942, 943 [3d Dept 2002], lv denied 99 NY2d 509 [2003]). And the court must view all of the evidence "in the light most favorable to the party opposing the motion, and all reasonable inferences must be resolved in that party's favor" (Udoh v Inwood Gardens, Inc., 70 AD3d 563, 565 [2010] citing Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [1st Dept 2005]).

[*6]ACS filed this motion for summary judgment pursuant to Family Court Act § 1046 (a) (i), which provides that "proof of abuse or neglect of one child shall be admissible evidence on the issue of abuse or neglect of any other child of, or the legal responsibility of, the respondent." However, proof of neglect or abuse as to one child, does not, standing alone, establish a prima facie case of derivative neglect or abuse as to any other child (Matter of Amanda LL., 195 AD2d 708, 709 [3d Dept 1993]). The prior finding must be related to "ongoing conditions" (Matter of Department of Social Servs. v Manual S., 148 Misc 2d 988, 994 [Fam Ct, Dutchess County 1990]).

Therefore, to prevail in this motion for summary judgment, ACS must present a prima facie case of derivative neglect, as follows, that: "(1) the offensive conduct proven as to one child was not remote in time . . . (2) the conduct was serious or involved a course of abusive or neglectful behavior . . . (3) the conduct demonstrated a fundamental defect in respondent's understanding of the duties and obligations of parenthood" (Matter of Department of Social Servs., 148 Misc 2d at 995 [internal citations omitted]). In addition, the court must consider whether the deficient conditions still exist "and whether sufficient positive change in the parents' behavior has occurred" (Matter of Kadiatou B., 52 AD3d 388, 389 [1st Dept 2008], lv denied 12 NY3d 701 [2009] citing Matter of Kimberly H., 242 AD2d 35, 39 [1st Dept 1998]).

There is "no hard and fast rule governing time proximity" in determining whether proof of neglect of one child " may, in appropriate circumstances, be sufficient to sustain a finding of abuse or neglect' of a second child" (Matter of Kadiatou B., 52 AD3d at 389 quoting Matter of Cruz, 121 AD2d 901, 902 [1st Dept 1986]). Whether the prior finding is in "time proximity" to the current proceeding depends on an analysis of the relevant time frames and the court's determination whether the circumstances and conditions upon which the prior finding is based still exist (Matter of Baby Girl S., 174 Misc 2d 682, 687 [Fam Ct, Bronx County 1997]). In this matter, ACS filed the derivative neglect petition as to Emani, NN 10707/10, on April 23, 2010, one month after her birth and twelve months after the filing of the original neglect case, NA 10597-98/2009, on April 29, 2009. The court entered its finding of neglect in NA 10597-98/2009 on December 3, 2010, approximately seven months after the filing of the derivative petition as to Emani. The court finds that the filing of the original neglect case, NA 10597-98/2009, and the finding of neglect in that case are not remote in time to the current derivative neglect proceeding.

However, the determination of whether the court's prior neglect finding is "so proximate in time as to be dispositive with respect to an after-born child" (Id. at 686), must be based on

facts that show that it is reasonable to presume an "ongoing condition" of neglect exists (Matter of Department of Social Servs., 148 Misc 2d at 994). To warrant the presumption of an ongoing condition, ACS must show that the original neglect finding supports the conclusion that there are fundamental flaws or defects in the respondent's understanding of the duties of parenthood, or "such " impairment of parental judgment to the point that it creates a substantial risk of harm for any child left in that parent's care" (Matter of Tradale CC., 52 AD3d 900, 901 [2d Dept 2008] derivative neglect properly found where respondent mother failed to complete substance abuse treatment, attend parenting classes and mental health counseling, and failed to provide for the education, medical care and properly supervise her children due to her abuse of alcohol; Matter of Cruz, 121 AD2d at 902-903, presumption of proximity warranted because of the egregious [*7]nature of the parents's conduct, handcuffing children to their beds, and the continuing imminent danger, which required the children to remain in foster care).

The events underlying the original neglect finding in this matter involved Respondent

Mother's failure to properly supervise the children Lyric and Elijah, and her failure to provide adequate medical care to treat Lyric's burn injuries on April 28, 2009. While these predicate events posed substantial risk of harm to both children, and resulted in serious, physical harm to the child Lyric, the nature and duration of the April 28, 2009 events, in and of themselves, were not so egregious as to demonstrate a fundamental defect or flaw or such impaired judgment to support the conclusion that any child left in Respondent Mother's care at the time of filing of derivative petition, NN-10707/2010, was at risk of substantial harm (cf. Matter of Cruz, 121 AD2d at 902-903; Matter of Dutchess County Dept. of Social Servs. [Noreen K.], 242 AD2d 533 [2d Dept 1997] abuse finding based on three non-accidental bone fractures suffered by two month old infant showed an "impaired level of parental judgment as to create a substantial risk of harm for any child" in the parents' care; Matter of Kimberly H., 242 AD2d 35, 39 [1st Dept 1998] reversing family court and remanding infant born one month after the court's finding of neglect against respondent mother due to excessive corporal punishment of older siblings who remained in foster care, holding that the court's finding was so proximate in time that it could reasonably concluded that the condition still existed and was likely to continue; Matter of Hannah UU., 300 AD2d 942, 943 [3d Dept 2002], lv denied 99 NY2d 509 [2003]mother's neglect of son due to mental illness and her continued impairment during her pregnancy justified finding of derivative neglect; Matter of Daniel R. [Lucille R.], 70 AD3d 839 [2d Dept 2010] live-in companion of mother sexually abused two of the mother's children and mother failed to protect the children from the abuse, thereby derivatively neglecting her five other children). These cases demonstrate that where there is egregious conduct on the part of the respondent parent or a pervasive pattern of neglectful parental behavior, an "ongoing condition" can be presumed to exist currently.

Thus, in this motion for summary judgment, the dispositive issue is whether Respondent Mother's deficient conduct exists currently, posing a substantial risk of harm to her children (Matter of Jelani B., 54 AD3d 1032 [2d Dept 2008]). ACS states that its requests for remands of all three children on April 23, 2010 and November 15, 2010, and the fact that Respondent Mother continued to receive extensive services and court monitoring demonstrated that the circumstances and conditions in the original neglect case, NA 10597-98/2009, still exist. However, it is important to note that the court denied both of ACS's requests for remands of the children. In fact, the court held an extensive hearing pursuant to Family Court Act § 1028 in November 2010 and it did not find that the children would be at imminent risk of harm if they remained in Respondent Mother's care, and continued the parole of the children to her. In many cases in which courts have granted summary judgment based on derivative neglect, the children have continued in foster care, thus showing that the conditions that led to the original finding continued to exist such that the children could not be returned to the respondent parent. The circumstances in this case differ markedly, in that the older children have remained with Respondent Mother since March 23, 2010, and the infant Emani has never left the care of Respondent Mother. Further, the fact that Respondent Mother continues to receive services does not provide a basis "as a matter of law, that the conditions which presented a danger to [*8]respondent's children have gone unchanged" (Matter of Suzanne RR., 35 AD3d at 1013). Moreover, Attorney for the Child and Attorney for Respondent Mother assert that, contrary to ACS's contentions, the fact of Respondent Mother's engagement in extensive services, her level of compliance and progress show that the conditions underlying the neglect finding in NN 10597-98/2009 have been ameliorated. These are material issues of fact in controversy in the current derivative neglect proceeding, NN 10707/2010.

Accordingly, the court denies ACS's motion for a summary judgment.

ENTER:

__________________________

CAROL R. SHERMAN,

JUDGE FAMILY COURT BRONX COUNTY

DATED: BRONX, NEW YORK

April 27, 2011