| Matter of Xiomara D. (Madelyn D.) |
| 2012 NY Slip Op 05036 [96 AD3d 1239] |
| June 21, 2012 |
| Appellate Division, Third Department |
| In the Matter of Xiomara D., a Child Alleged to be Neglected.Broome County Department of Social Services, Respondent; Madelyn D. et al.,Appellants. |
—[*1] Teresa C. Mulliken, Harpersfield, for Direll D., appellant. Philomena M. Stamato, Broome County Department of Social Services, Binghamton, forrespondent. F. Daniel Casella, Binghamton, attorney for the child.
Rose, J. Appeals (1) from an order of the Family Court of Broome County (Charnetsky, J.),entered September 27, 2010, which, in a proceeding pursuant to Family Ct Act article 10, grantedpetitioner's motion for summary judgment adjudicating respondents' child to be derivativelyneglected, and (2) from an order of said court (Connerton, J.), entered March 24, 2011, whichgranted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, toadjudicate respondents' child to be neglected.
Respondent Madelyn D. (hereinafter the mother) and respondent Direll D. (hereinafter thefather) are the married parents of six children, the youngest of whom, Xiomara D. (born 2010), isthe subject of this proceeding. Shortly after the youngest child's birth, petitioner removed herfrom respondents' custody and commenced this neglect proceeding alleging that she wasderivatively neglected because respondents had twice been found to have neglected their [*2]other children in 2008 by committing mutual acts of domesticviolence in their presence, and those five children have since remained in foster care. Petitionerfurther asserted that, among other things, both parents had failed to adequately address theirdomestic violence issues through available preventive services as required by the priordispositional orders.
In July 2010, petitioner moved for summary judgment on its amended neglect petition,relying, in part, on the two prior findings of neglect and requesting Family Court (Charnetsky, J.)to take judicial notice of respondents' testimony at a May 2010 hearing held pursuant to FamilyCt Act § 1028, over which the court had presided. In opposition, respondents submittedaffidavits stating that they had engaged in services and, therefore, a question of fact remained asto whether the circumstances which led to the prior neglect adjudications continued to exist.Following oral argument, Family Court granted petitioner's motion, finding that althoughrespondents may have attempted to participate in certain services, they had not substantiallybenefitted to the extent that the five older children could be returned to them and, thus, nomaterial questions of fact existed on the issue of derivative neglect. Family Court (Connerton, J.)later held a full dispositional hearing and issued an order adjudicating the child to be neglectedand continuing her placement in petitioner's care. Respondents now appeal from the ordergranting summary judgment, and the father also appeals from the order of disposition. We affirm.
Although it is a drastic procedural device, Family Court is authorized to grant summaryjudgment in a neglect proceeding where no triable issue of fact exists (see Matter of Jadalynn HH. [Roy HH.],93 AD3d 1112, 1113 [2012]; Matter of Quinton GG. [Jessica HH.], 82 AD3d 1557, 1558 [2011];Matter of Hannah UU., 300 AD2d 942, 943 [2002], lv denied 99 NY2d 509[2003]). "Derivative neglect is established where the evidence demonstrates an impairment ofparental judgment to the point that it creates a substantial risk of harm for any child left in thatparent's care, and the prior neglect determination is sufficiently proximate in time to reasonablyconclude that the problematic conditions continue to exist" (Matter of Tradale CC., 52 AD3d 900, 901 [2008]; see Matter of Michael N. [Jason M.],79 AD3d 1165, 1167-1168 [2010]; Matter of Suzanne RR., 35 AD3d 1012, 1012-1013 [2006]).
Here, Family Court twice entered orders of neglect with regard to respondents' other childrenbased primarily upon respondents' repeated and escalating acts of serious domestic violencecommitted against each other in the children's presence. As a result of those adjudications in2008, respondents were ordered to, among other things, participate in domestic violence andanger management counseling, and orders of protection were issued that prohibited respondentsfrom having contact with each other. In support of its motion for summary judgment, petitionerpointed to respondents' concessions at the Family Ct Act § 1028 hearing that they hadviolated the no-contact order of protection—which has since expired—when theyconceived the child, and that they currently reside together. Additionally, petitioner's proofestablished that the father had not taken a specific court-ordered domestic violence program, hadnot completed any domestic violence or anger management classes and, within the prior year, heand the mother had been involved in a domestic incident that resulted in the police being calledto the father's place of work. Further, although the mother had completed a domestic violencecourse, she was taking it for a second time because the instructors felt she had not benefittedfrom it. This evidence alone was sufficient to establish a prima facie case that the subject childwas derivatively neglected, inasmuch as respondents' failure to complete services since the 2008adjudications and their conceded violation of the order of protection, together with their currentcohabitation, demonstrated that the problematic conditions which led to the prior adjudications[*3]continued to exist (see Matter of Michael N. [JasonM.], 79 AD3d at 1168; Matter of Tradale CC., 52 AD3d at 901-902; Matter ofHannah UU., 300 AD2d at 944).
In opposition, respondents submitted affidavits asserting that they had completed andbenefitted from the appropriate services. However, respondents conceded that they had violatedthe order of protection, as the child was conceived during a time when that order was in place,and that they are currently living together and intend to remain together despite the fact thatneither party had yet successfully completed a domestic violence program. The proximity of theprior adjudications of neglect, in conjunction with respondents' failure to comply with thedispositional orders from either adjudication, demonstrate that the conditions which led to thoseadjudications have not been addressed and continue to exist (see Matter of Tradale CC.,52 AD3d at 902; compare Matter ofAmber C., 38 AD3d 538, 541 [2007], lv denied 8 NY3d 816 [2007], lvdismissed 11 NY3d 728 [2008]). While respondents may have attempted—andrecently completed—some of the services required by the prior dispositional orders, thisdoes not raise a material question of fact as to whether the child was neglected. It is relevant tothe disposition instead, and not to the adjudication of derivative neglect (see Matter of NassauCounty Dept. of Social Servs. v Denise J., 87 NY2d 73, 80 [1995]; Matter of Paige WW. [Charles XX.],71 AD3d 1200, 1203-1204 [2010]; Matter of Hannah UU., 300 AD2d at 945).Accordingly, petitioner established by a preponderance of the evidence that respondentsderivatively neglected the child, and respondents' assertions that they have attempted to completepreventative services are insufficient to defeat petitioner's motion for summary judgment.
Turning to the dispositional order, we reject the father's contention that continuing the childin petitioner's custody was not in her best interest and lacked a sound and substantial basis in therecord (see Matter of Kole HH. [ThomasHH.], 84 AD3d 1518, 1519 [2011]; Matter of Elijah Q., 36 AD3d 974, 976 [2007], lv denied 8NY3d 809 [2007]; Matter of AlainaE., 33 AD3d 1084, 1087 [2006]). The evidence adduced at the dispositional hearingfurther established that respondents have failed to adequately address their domestic violenceissues through services and have repeatedly refused to cooperate with petitioner. The fathertestified that, in October 2011, he called the police because the mother broke two windows at hisapartment while respondents were arguing. The mother was criminally charged as a result of thatincident. Additionally, the father, although having completed a domestic violence course by thetime of the dispositional hearing, acknowledged that he had not successfully completed an angermanagement class, testified that he would not take a course directed toward victims of domesticviolence and that he did not believe an order of protection between himself and the mother wasnecessary. Under these circumstances, we decline to disturb the determination of Family Court(Connerton, J.) that placing the child in petitioner's custody was in her best interest (see Matter of Keaghn Y. [Heaven Z.],84 AD3d 1478, 1479 [2011]; Matter of Kaleb U. [Heather V.—Ryan U.], 77 AD3d 1097,1099-1100 [2010]; Matter of BrandonDD. [Jessica EE.], 74 AD3d 1435, 1437 [2010]).
Peters, P.J., Mercure, Lahtinen and Egan Jr., JJ., concur. Ordered that the orders are affirmed,without costs.