| Matter of Karm'ny QQ. (Steven QQ.) |
| 2014 NY Slip Op 01359 [114 AD3d 1101] |
| February 27, 2014 |
| Appellate Division, Third Department |
| In the Matter of Karm'ny QQ., a Child Alleged to beNeglected. Washington County Department of Social Services, Respondent; Steven QQ.,Appellant. (And Another Related Proceeding.) |
—[*1] Robert A. Wickes, County Attorney, Fort Edward (Daniel S. Martindale of counsel),for respondent. Lynne E. Ackner, Glens Falls, attorney for the child.
McCarthy, J. Appeals (1) from an order of the Family Court of Washington County(Pritzker, J.), entered June 20, 2012, which, in a proceeding pursuant to Family Ct Actarticle 10, denied respondent's motion for the return of his child, and (2) from an order ofsaid court, entered November 29, 2012, which, in said proceeding pursuant to Family CtAct article 10, granted petitioner's motion for summary judgment adjudicatingrespondent's child to be derivatively neglected.
In October 2011, respondent consented to a finding that he neglected three children.In January 2012, two days after the birth of respondent's child, Karm'ny QQ., petitionercommenced this proceeding alleging derivative neglect of that child. Family Courttemporarily removed the child and, with the exception of a two-week period when shewas placed with a relative, the child has remained in foster care. In June 2012,respondent moved pursuant to Family Ct Act § 1028 [*2]for return of the child and, following a hearing, the courtdenied the motion. Petitioner then moved for summary judgment adjudicating the childto be derivatively neglected by both parents, which the court granted in November 2012as against respondent. Respondent appeals from both orders, but he is not pursuing hisappeal from the June 2012 order because he acknowledges that it is moot (see Matter of Mary YY. [AlbertYY.], 98 AD3d 1198, 1198 [2012]).
Despite a September 2013 default order finding permanent neglect and an October2013 order terminating respondent's parental rights to Karm'ny, the appeal from theNovember 2012 order adjudicating neglect is not moot. This Court has recognized anexception to mootness when a parent is challenging a neglect finding, as such a finding"creates a stigma and may adversely affect the parent in future proceedings" (Matter of Bayley W. [JadenW.], 100 AD3d 1203, 1203-1204 [2012]; see Matter of Armani KK. [Deborah KK.], 81 AD3d 1001,1002 [2011], lv denied 16 NY3d 711 [2011]). Additionally, respondent can stillmove to vacate the default order (see CPLR 5015 [a]; Matter of Sandra J., 25 AD3d360, 360 [2006]). Thus, we will address the merits of that appeal.
Family Court erred in granting summary judgment because triable issues of factremain. Summary judgment is rarely used in Family Court proceedings, and is onlyappropriate when no triable issue of fact exists (see Matter of Suffolk County Dept.of Social Servs. v James M., 83 NY2d 178, 182 [1994]; Matter of Alyssa WW. [CliftonWW.], 106 AD3d 1157, 1158 [2013]). While proof that respondent previouslyneglected three other children was admissible on the issue of whether he neglectedKarm'ny (see Family Ct Act § 1046 [a] [i]), such proof alone typically isnot sufficient to establish derivative neglect (see Matter of Michael N. [Jason M.], 79 AD3d 1165, 1167[2010]; Matter of Amanda LL., 195 AD2d 708, 709 [1993]). "Derivative neglectis established where the evidence demonstrates an impairment of parental judgment tothe point that it creates a substantial risk of harm for any child left in that parent'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., 52AD3d 900, 901 [2008] [citation omitted]; accord Matter of Xiomara D. [Madelyn D.], 96 AD3d1239, 1240 [2012]).
The prior neglect determination here occurred less than three months before theinstant petition was filed, sufficiently proximate so as to give rise to an inference that theconditions leading to such determination still existed (see Matter of Michael N.[Jason M.], 79 AD3d at 1168). Despite that inference, the testimony from the FamilyCt Act § 1028 hearing raised questions of fact regarding whether respondent wasappropriately dealing with those conditions (see Matter of Brandie B. [Barrington B.], 109 AD3d 987,988 [2013]).[FN*] Neither the hearing testimony, nor the affidavit from petitioner's caseworker, containedany proof that respondent was using illegal drugs. The only positive drug test was from2010. While petitioner alleged that respondent failed to obtain a substance abuseevaluation and follow up on recommended [*3]treatment,respondent testified that he was evaluated by one of petitioner's employees—whohe identified by name—and was told that no treatment was necessary. Petitionerdid not provide an affidavit or other proof from that employee to contradict respondent'stestimony. Respondent acknowledged that he did not enroll in the specified angermanagement program, but testified that he was financially unable to do so. Respondentmissed many of his visits with the child, but indicated that he exercised more visits thanpetitioner stated, at least one visit was canceled by petitioner and his work hoursinterfered with some visits.
One of the conditions that contributed to the neglect finding was respondent'sunstable housing, but he testified that, contrary to petitioner's assertions, he was neverhomeless during the child's life and, by the time of the hearing, he had established asuitable home with his new girlfriend. In the June 2012 order, Family Court ordered thatpetitioner investigate this new home and submit a report to the court, but the record doesnot indicate that any such investigation was completed. Respondent also testified that hehad obtained a good job and his girlfriend was arranging for childcare. Althoughpetitioner raised questions about some of respondent's testimony, and established thatrespondent often failed to provide information and was not cooperative, the evidencesubmitted by petitioner raised factual questions regarding neglect such that summaryjudgment was not appropriate (see Matter of Brandie B. [Barrington B.], 109AD3d at 988; compare Matter of Xiomara D. [Madelyn D.], 96 AD3d at1240-1241).
Lahtinen, J.P., Stein and Egan Jr., JJ., concur. Ordered that the appeal from the orderentered June 20, 2012, is dismissed, as moot, without costs. Ordered that the orderentered November 29, 2012 is reversed, on the law, without costs, and matter remitted tothe Family Court of Washington County for further proceedings not inconsistent withthis Court's decision.
Footnote *: Family Courtincorrectly stated that respondent had not appealed the Family Ct Act § 1028order. While the appeal from that order is now moot, he should not be collaterallyestopped from contesting issues raised in that hearing. Additionally, while respondent didnot provide a copy of the hearing transcript as a motion exhibit, counsel asked the courtto refer to the testimony, and the order on appeal indicates that the court did consider thattestimony.