In re Alicia P.

• Decision Date: 31 December 2014
• Docket Number: 2013-07756 (Docket No. N-5971-13)
• Parties: In the Matter of ALICIA P. (Anonymous). Administration for Children's Services, petitioner-respondent; Gregory P. (Anonymous), also known as John–Gregory P. (Anonymous), respondent-appellant, et al., respondent.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 1135

999 N.Y.S.2d 190

2014 N.Y. Slip Op. 09140

In the Matter of ALICIA P. (Anonymous). Administration for Children's Services, petitioner-respondent; Gregory P. (Anonymous), also known as John–Gregory P. (Anonymous), respondent-appellant, et al., respondent.

2013-07756 (Docket No. N-5971-13)

Supreme Court, Appellate Division, Second Department, New York.

Dec. 31, 2014.

Robert Hausner, Garden City, N.Y., for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Victoria Scalzo of counsel), for petitioner-respondent.

Joel Borenstein, Brooklyn, N.Y., attorney for the child.

REINALDO E. RIVERA, J.P., PETER B. SKELOS, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

Opinion

Appeal from an order of the Family Court, Queens County (Margaret P. McGowan, J.), dated July 29, 2013. The order, insofar as appealed from, granted the petitioner's motion for summary judgment on the issue of whether the father derivatively neglected the child Alicia P.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

In determining whether a child born after the underlying acts of neglect should be adjudicated as a child who was derivatively neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct that formed the basis for a finding of neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists (see Matter of Harmony M.E. [Andre C.], 121 A.D.3d 677, 679, 994 N.Y.S.2d 138 ; Matter of Jeremiah I.W. [Roger H.W.], 115 A.D.3d 967, 969, 982 N.Y.S.2d 516 ; Matter of Elijah O. [Marilyn O.], 83 A.D.3d 1076, 1077, 923 N.Y.S.2d 575 ; Matter of Cruz, 121 A.D.2d 901, 902–903, 503 N.Y.S.2d 798 ). “In such a case, the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future” (Matter of Cruz, 121 A.D.2d at 903, 503 N.Y.S.2d 798 ; see Matter of Elijah O. [Marilyn O.], 83 A.D.3d at 1077, 923 N.Y.S.2d 575 ; Matter of Amber C., 38 A.D.3d 538, 540, 831 N.Y.S.2d 478 ). “[I]n an appropriate case, the Family Court may enter a finding of neglect on a summary judgment motion in lieu of holding a fact-finding hearing upon the petitioner's prima facie showing of neglect as a matter of law and the respondent's failure to raise a triable issue of fact in opposition to the motion” (Matter of Giovanni S. [Jasmin A.], 98 A.D.3d 1054, 1056, 950 N.Y.S.2d 777 ; see Matter of Harmony M.E. [Andre C.], 121 A.D.3d at 680, 994 N.Y.S.2d 138 ).

Here, the petitioner established, prima facie, that the subject child, Alicia P., was derivatively neglected by the father. The petitioner demonstrated, inter alia, that the father failed to complete drug treatment and domestic violence counseling programs, as required by the orders of disposition issued in connection with the prior neglect findings against him, and that the conduct that formed the basis of the most recent neglect finding was sufficiently proximate in time to this derivative neglect proceeding such that it can reasonably be concluded that the condition still exists (see Matter of Jamarra S. [Jessica S.], 85 A.D.3d 803, 804, 925 N.Y.S.2d 531 ; Matter of Amber C., 38 A.D.3d at 541, 831 N.Y.S.2d...