| Matter of Ilonni I. (Benjamin K.) |
| 2014 NY Slip Op 04987 [119 AD3d 997] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 In the Matter of Ilonni I., a Child Alleged to beNeglected, Abused and/or Severely Abused. St. Lawrence County Department of SocialServices, Respondent; Benjamin K., Appellant. |
John A. Cirando, Syracuse, for appellant.
Laurie Paro, St. Lawrence County Department of Social Services, Canton, forrespondent.
Maureen C. McGaw, Canton, attorney for the child.Lahtinen, J.P. Appeal from an order of the Family Court of St. Lawrence County(Morris, J.), entered February 7, 2013, which, in a proceeding pursuant to Family Ct Actarticle 10, granted petitioner's motion for summary judgment adjudicating the subjectchild to be derivatively neglected, abused and severely abused.
In 2010, Family Court determined that respondent had neglected, abused andseverely abused the daughter (born 1998) of his former cohabitant based upon its findingthat he had sexual intercourse with the child several times, including in November 2008.As a result, Family Court further determined that respondent's six biological children(born to three different women) and one stepchild were derivatively neglected, abusedand severely abused. We affirmed those orders (Matter of Ramsey H. [Benjamin K.], 99 AD3d 1040, 1041[2012], lv denied 20 NY3d 858 [2013]). When another child (Ilonni I.) was bornto respondent and his wife in 2012, petitioner commenced this proceeding allegingderivative neglect, abuse and severe abuse of the [*2]newly-born child based on the prior determinations andrespondent's failure to complete services. Petitioner moved for summary judgment andFamily Court granted the motion. Respondent appeals.
" 'Although it is a drastic procedural device, Family Court is authorized togrant summary judgment in a neglect proceeding where no triable issue of factexists' " (Matter ofAlyssa WW. [Clifton WW.], 106 AD3d 1157, 1158 [2013], quoting Matter of Xiomara D. [MadelynD.], 96 AD3d 1239, 1240 [2012]). Neglect or abuse of one child typically maynot serve as the sole support for a finding of derivative abuse or neglect; however, wherethe proof of "past neglect and abuse demonstrably 'evidence[s] fundamental flaws in therespondent's understanding of the duties of parenthood, proof of abuse or neglect ofother children is alone sufficient to sustain a finding of abuse or neglect of anotherchild' " (Matter ofMichael N. [Jason M.], 79 AD3d 1165, 1167 [2010], quoting Matter of Evelyn B., 30 AD3d913, 915 [2006], lv denied 7 NY3d 713 [2006]; see Matter of Kayden E. [LuisE.], 111 AD3d 1094, 1096 [2013], lv denied 22 NY3d 862 [2014]). Aprior determination should be "sufficiently proximate in time to reasonably conclude thatthe problematic conditions continue to exist" (Matter of Tradale CC., 52 AD3d 900, 901 [2008]), but"there is no 'bright-line, temporal rule beyond which we will not consider older childprotective determinations' " (Matter of Paige WW. [Charles XX.], 71 AD3d 1200, 1203[2010], quoting Matter of Evelyn B., 30 AD3d at 915).
Here, petitioner established a prima facie case for summary judgment with theaffidavit of its counsel setting forth the prior proceedings, the Family Court records ofsuch proceedings and an affidavit from a caseworker. The nature of the acts that FamilyCourt had found in the 2010 proceedings as having been perpetrated upon a childentrusted to respondent's care established a fundamental defect in respondent'sunderstanding of parental duties. The caseworker set forth, among other things,respondent's failure to complete preventive services, including sex offender treatment.Although respondent's affidavit in opposition offered explanations for his inability tocomplete some services, he acknowledged that he had not yet completed sex offendertreatment. Given the nature of the 2008 acts found in the 2010 proceedings, together withthe fact that respondent is still in, but has not yet successfully completed, sex offendertreatment, we are unpersuaded that Family Court erred in granting summary judgment(see Matter of Xiomara D. [Madelyn D.], 96 AD3d at 1241; Matter of TradaleCC., 52 AD3d at 901-902).
Respondent further argues that Family Court violated his due process rights by rulingon petitioner's motion for summary judgment at a court proceeding where neither he norhis counsel was present. Family Court's decision regarding the motion was set forthorally on the record on a scheduled trial date. Significantly, respondent had been givennotice of the court date, respondent's papers in opposition to the motion had beensubmitted prior to the court date and Family Court did not entertain any argument on themotion from those present in court. Thus, without considering further evidence orargument, the court simply decided the motion orally on the record based uponpreviously submitted papers. Under such circumstances, respondent's due process rightswere not violated (compareMatter of Jeffrey JJ. v Stephanie KK., 88 AD3d 1083, 1084 [2011]).
Stein, Egan Jr., Devine and Clark, JJ., concur. Ordered that the order is affirmed,without costs.