| Matter of Alyssa WW. (Clifton WW.) |
| 2013 NY Slip Op 03141 [106 AD3d 1157] |
| May 2, 2013 |
| Appellate Division, Third Department |
| In the Matter of Alyssa WW. and Another, ChildrenAlleged to be Neglected. Cortland County Department of Social Services, Respondent;Clifton WW., Appellant. |
—[*1] Kathleen A. Sullivan, Cortland County Department of Social Services, Cortland, forrespondent. Donna C. Chin, Ithaca, attorney for the child. Frank A. Sarat, Homer, attorney for the child.
Mercure, J.P. Appeal from an order of the Family Court of Cortland County (Ames,J.), entered March 6, 2012, which, in a proceeding pursuant to Family Ct Act article 10,granted petitioner's motion for summary judgment adjudicating respondent's children tobe neglected.
Respondent is the father of two daughters, born in 1996 and 1998. In October 2011,petitioner commenced this proceeding in Cortland County seeking to have the childrenadjudicated to be derivatively neglected based upon a pending Tompkins Countyproceeding in which it was alleged that respondent's use of methamphetamine andmarihuana had rendered him incapable of caring for four other children in his care.Family Court of Tompkins County (Rowley, J.) ultimately entered an order upon consentfinding the children in that proceeding to have been neglected, and ordered themremoved from respondent's home and placed in the [*2]custody of the Tompkins County Commissioner of SocialServices. Thereafter, petitioner moved for summary judgment in this proceeding basedupon the order entered in Tompkins County. Family Court (Ames, J.) granted thepetition, concluding that there were no triable issues of fact regarding the derivativeneglect of the subject children. Respondent appeals, and we now affirm.
"Although it is a drastic procedural device, Family Court is authorized to grantsummary judgment in a neglect proceeding where no triable issue of fact exists" (Matter of Xiomara D. [MadelynD.], 96 AD3d 1239, 1240 [2012] [citations omitted]; see Matter of SuffolkCounty Dept. of Social Servs. v James M., 83 NY2d 178, 182 [1994]; Matter ofHannah UU., 300 AD2d 942, 943 [2002], lv denied 99 NY2d 509 [2003]).We note that "evidence of abuse of one child will not, in and of itself, establish a primafacie case of derivative neglect or abuse of another" (Matter of D'Anna KK., 299AD2d 761, 762 [2002]). Rather, a prima facie case of " '[d]erivative neglect isestablished where the evidence demonstrates an impairment of parental judgment to thepoint that it creates a substantial risk of harm for any child left in that parent's care, andthe prior neglect determination is sufficiently proximate in time to reasonably concludethat the problematic conditions continue to exist' " (Matter of Xiomara D. [MadelynD.], 96 AD3d at 1240, quoting Matter of Tradale CC., 52 AD3d 900, 901 [2008]; see Matter of Suzanne RR., 35AD3d 1012, 1012-1013 [2006]).
Here, the prior neglect determination was proximate in time—the orderreflecting respondent's consent to a finding of neglect based upon excessive drug use wasentered in January 2012, and petitioner moved for summary judgment in this proceedingless than one month later. Moreover, the Tompkins County fact-finding determinationand related documents submitted with the summary judgment motion herein establishthat respondent used marihuana and methamphetamine on a daily basis while thechildren were in his care, allowed drugs to be present in the home and accessible to thechildren, called the children derogatory names while under the influence of drugs andpermitted his drug dealer to come into the home to use and sell drugs. Petitioner'ssubmissions further established that respondent's substance abuse was long-standing, andhad resulted in two previous indicated reports of child neglect in 2000 and 2004. In ourview, this evidence established a prima facie case of derivative neglect. As he does onthis appeal, respondent argued in opposition only that the subject children could not befound to have been neglected because they were not in the home at the time of theactivities that gave rise to the finding of neglect with respect to the four other children.Inasmuch as respondent has failed to create a question of fact regarding whether theconditions that led to the prior adjudication continue to exist, Family Court properlygranted petitioner's motion for summary judgment (see Matter of Xiomara D.[Madelyn D.], 96 AD3d at 1240-1241; Matter of Jadalynn HH. [Roy HH.], 93 AD3d 1112, 1114[2012]; Matter of Tradale CC., 52 AD3d at 901-902; see also Matter ofDouglas QQ., 273 AD2d 711, 713 [2000]; cf. Matter of Suzanne RR., 35AD3d at 1013-1014).
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.