| Matter of Elijah O. (Marilyn O.) |
| 2011 NY Slip Op 03613 [83 AD3d 1076] |
| April 26, 2011 |
| Appellate Division, Second Department |
| In the Matter of Elijah O., an Infant. Administration for Children'sServices, Respondent; Marilyn O., Also Known as Noelma O.,Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and EdwardF.X. Hart of counsel), for respondent. Alan S. Cabelly, Jamaica, N.Y., attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the mother appealsfrom an order of the Family Court, Queens County (McGowan, J.), dated June 4, 2010, whichgranted the petitioner's motion for summary judgment on the issue of her derivative abuse andderivative severe abuse of the child Elijah O.
Ordered that the order is reversed, on the law, without costs or disbursements, the petitioner'smotion for summary judgment is denied, and the matter is remitted to the Family Court, QueensCounty, for a fact-finding hearing and a new determination.
The subject of this derivative abuse and severe abuse proceeding, Elijah O., was born onFebruary 17, 2008, over three years after the appellant committed an act of abuse against Elijah'solder half-brother, Lashawn. Subsequent to the abuse of Lashawn, the mother pleaded guilty toassault in the second degree and admitted during her plea allocution that the victim of the assaultwas Lashawn. In light of the mother's conviction, the Family Court granted summary judgment tothe Administration for Children's Services (hereinafter ACS), entering findings that the motherabused Lashawn and derivatively abused two other children, Tiffany and Leon, who were livingin the home at the time that the abuse occurred (see Matter of Leon K. [Marilyn O.], 69AD3d 856 [2010]). Proceedings relating to Leon, Tiffany, and Lashawn regarding allegations ofsevere abuse and derivative severe abuse are still pending (see Matter of Leon K. [MarilynO.], 83 AD3d 1069 [2011] [decided herewith]).
Here, ACS moved for summary judgment on the issues of derivative abuse and derivativesevere abuse of Elijah. The attorney for the child supported the motion, but the appellantopposed, arguing that she was entitled to a fact-finding hearing. The Family Court granted ACS'smotion. We reverse and remit the matter to the Family Court, Queens County, for a fact-findinghearing and a new determination.
In determining whether a child born after the underlying acts of abuse or neglect should be[*2]adjudicated derivatively abused or neglected, the"determinative factor is whether, taking into account the nature of the conduct and any otherpertinent considerations, the conduct which formed the basis for a finding of abuse or neglect asto one child is so proximate in time to the derivative proceeding that it can reasonably beconcluded that the condition still exists" (Matter of Cruz, 121 AD2d 901, 902-903[1986]; see Matter of Amber C., 38 AD3d 538, 541 [2007]; Matter of Baby BoyW., 283 AD2d 584, 585 [2001]). "In such a case, the condition is presumed to exist currentlyand the respondent has the burden of proving that the conduct or condition cannot reasonably beexpected to exist currently or in the foreseeable future" (Matter of Cruz, 121 AD2d at903; see Matter of Amber C., 38 AD3d at 541; Matter of Baby Boy W., 283AD2d at 585).
Under the circumstances of this case, it was error for the Family Court to grant ACS's motionfor summary judgment. Given the passage of time between the conduct which formed the basisfor the finding that Lashawn was abused and Elijah's birth, it cannot be said, as a matter of law,that the condition still exists. "[T]here is no per se rule that a finding of neglect [or abuse] of onesibling requires a finding of derivative neglect [or abuse] with respect to the other siblings"(Matter of Andrew B.-L., 43 AD3d 1046, 1047 [2007]).
In light of the foregoing, and in light of our determination in Matter of Leon K. (83AD3d 1069 [2011]), the award of summary judgment on the issue of derivative severe abuse alsowas improper.
We take no position as to whether, after a fact-finding hearing, the allegations of derivativeabuse should be sustained by the Family Court. Mastro, J.P., Belen, Chambers and Roman, JJ.,concur.