| Matter of Quinton GG. (Jessica HH.) |
| 2011 NY Slip Op 02514 [82 AD3d 1557] |
| March 31, 2011 |
| Appellate Division, Third Department |
| In the Matter of Quinton GG. and Others, Children Alleged to beNeglected. Broome County Department of Social Services, Respondent; Jessica HH., Appellant,et al., Respondent. |
—[*1] Kuredin V. Eytina, Broome County Department of Social Services, Binghamton, forrespondent. Paul F. Tomkins, Binghamton, attorney for the children.
Lahtinen, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered July 13, 2010, which, among other things, in a proceeding pursuant to Family Ct Actarticle 10, denied a motion by respondent Jessica HH. to dismiss the petition.
Respondent Jessica HH. (hereinafter the mother) and respondent Edward GG. (hereinafterthe father) are the parents of three children, born in 2003, 2001 and 1999. The mother and thefather reportedly had a history of alcohol and substance abuse, and the children had previouslybeen removed from their custody because of neglect. After completing various programs, thechildren had been returned to the custody of the mother and the father. However, in January2010, the mother engaged in domestic abuse against the father (who reportedly had been drinkingexcessively) by repeatedly striking him in the head with a frying pan. The children [*2]were present in the trailer when the incident occurred. Shortlythereafter, relatives of the children petitioned for custody. While the custody proceedings werepending, petitioner commenced this neglect proceeding in March 2010. In April 2010, orderswere entered in the custody proceedings granting custody of the two youngest children to onerelative and custody of the oldest child to another relative. The mother then moved to dismiss theneglect petition on the ground that the custody orders made the neglect proceeding unnecessary(see Family Ct Act § 1051 [c]), and she also requested summary judgmentasserting that there were no triable issues showing neglect. Alternatively, she sought anadjournment in contemplation of dismissal (see Family Ct Act § 1039). FamilyCourt denied the motion in its entirety and the mother now appeals.
We affirm. A motion to dismiss pursuant to Family Ct Act § 1051 (c) need not begranted where Family Court is not persuaded that intervening custody orders will adequatelyprotect the children (see Matter ofSharnaza Q. [Clarence W.], 68 AD3d 436 [2009]; Matter of Mary Kate VV., 59 AD3d 873, 874 [2009], lvdenied 12 NY3d 711 [2009]; Matter of Lewis T., 249 AD2d 646, 647-648 [1998];Matter of Diana Y., 246 AD2d 340, 340 [1998]). Here, the custody orders grantedvisitation as agreed to and arranged between the custodial relatives and the mother, with noinvolvement by or notice to petitioner. Family Court noted that the orders were also subject tomodification without notice to petitioner and that, if the neglect proceeding were dismissed,petitioner would have no authority to work with the mother or the children. In light of thesecircumstances, we find that Family Court did not err in denying the mother's motion to dismissunder Family Ct Act § 1051 (c).
Turning to the mother's request for summary judgment, while such relief may be granted in aneglect proceeding, "it remains a drastic procedural device which will be found appropriate onlyin those circumstances when it has been clearly ascertained that there is no triable issue of factoutstanding; issue finding, rather than issue determination, is its function" (Matter of HannahUU., 300 AD2d 942, 943 [2002], lv denied 99 NY2d 509 [2003] [internal quotationmarks and citation omitted]; see Matterof Tradale CC., 52 AD3d 900, 901 [2008]). In the face of the allegations in the verifiedpetition, the mother failed to meet her threshold burden of demonstrating that there were notriable issues and that the petition should be dismissed as a matter of law. Summary judgmentwas thus properly denied.
Finally, Family Court properly denied the mother's request for an adjournment incontemplation of dismissal since petitioner did not consent to such action as required by statute(see Family Ct Act § 1039 [a]; Matter of Brandon B., 272 AD2d 953[2000]).
Peters, J.P., Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,without costs.