The above-captioned matters proceeded to a fact-finding hearing on July 11, 2023 to determine whether the child was neglected within the definition of Family Court Act Article 10. At the opening of the hearing, Petitioner Orange County Department of Social Services ("DSS") rested without offering any evidence of the previously alleged neglect. Upon the close of DSS' case at the hearing, the Respondents moved to dismiss the above-captioned neglect proceedings. The Respondents' motion to dismiss was not opposed; however, the Children's Rights Society ("CRS"), as attorney for the child, additionally moved for permission to originate new neglect proceedings against the Respondents following the imminent dismissal of the pending neglect [*2]proceedings. The Court reserved decision on the motions and adjourned the proceedings pending decision.

By failing to offer any evidence of the alleged neglect at the fact-finding hearing in these matters, Petitioner DSS failed to establish facts sufficient to sustain their Article 10 neglect petitions. Accordingly, the Respondents' motion to dismiss must be granted and the petitions herein must be dismissed pursuant to FCA § 1051(c).

Family Court Act § 1032(b) provides that "a person on the court's direction" may originate a neglect proceeding. See FCA § 1032(b). The attorney for the child qualifies as a "person" who may seek court permission to originate a neglect proceeding pursuant to FCA § 1032(b). In re Jalesa P., 75 AD3d 730, 730 (3d Dept. 2010).

Whether or not to grant permission to file a neglect proceeding pursuant to FCA § 1032(b) is a matter of discretion for the trial judge. In re Amber A., 108 AD3d 664, 665 (2d Dept. 2013); see, e.g., Hamm-Jones v. Jones, 14 AD3d 956 (3d Dept. 2005) (finding that the trial judge properly exercised discretion to deny an FCA § 1032[b] motion where the subject proceeding had been dismissed after a fact-finding hearing which yielded no evidence that the respondent mistreated either child).

Here, similar to Hamm-Jones, no evidence of neglect was adduced at the fact-finding hearing. This Court cannot reasonably justify endorsing a second round of neglect proceedings after the first round, though vigorously pursued and debated throughout its months-long pendency, ultimately failed to produce evidence of the alleged neglect at the trial stage. Thus, the Court exercises its discretion to deny CRS' 1032(b) motion as to any allegations of neglect previously raised in these proceedings.

Beyond the matter of the Court's discretion, this Court further finds that it is required to deny CRS' 1032(b) motion pursuant to the doctrine of res judicata. The doctrine of res judicata or the claim preclusion effect applies to Article 10 neglect proceedings that have been determined on the merits. See In re Alfonzo T., 79 AD3d 1724 (4d Dept. 2010); In re Yan Ping Z., 190 Misc 2d 151 (Fam. Ct. 2001). To allow successive proceedings alleging the same theory or transactions of neglect until the desired result is obtained would undermine fundamental rules of fairness that must be afforded to the accused after a determination on the merits. See In re Alfonzo T., 79 AD3d at 1725; In re Yan Ping Z., 190 Misc 2d at 155.

Here, the above-captioned neglect proceedings were dismissed upon the Petitioner's failure of proof at the trial stage. Thus, the allegations of neglect against the Respondents may not be re-litigated in new, successive proceedings. Nevertheless, previously unrelated and uncharged allegations of neglect (which could not have been discovered during the previous proceedings) or subsequently occurring events of alleged neglect could avoid the operation of res judicata and be prosecuted anew. See, In re Yan Ping Z., 190 Misc 2d at 155. Thus, CRS will be given leave to commence neglect proceedings only as to any previously unrelated and uncharged allegations of neglect (which could not have been discovered during the previous proceedings) or subsequently occurring events of alleged neglect.

For the above-stated reasons, it is hereby

ORDERED that Respondents' motion to dismiss the proceedings pursuant to FCA § 1051(c) is granted and the within petitions are dismissed with prejudice; and it is further

ORDERED that The Children's Rights Society's motion pursuant to FCA § 1032(b) is granted only as to any previously unrelated and uncharged allegations of neglect (which could not have been discovered during the previous proceedings) or subsequently occurring events of alleged neglect, and is otherwise denied.

This constitutes the Decision and Order of the Court.