Lambert, Matter of
| Decision Date | 17 May 1983 |
| Court | New York Family Court |
| Parties | In the Matter of Tamara LAMBERT, A Child under the age of (eighteen) years Alleged to be (Abused) by Joan Lambert & Byron Harrison, Respondents. In the Matter of Debra Imari HARRISON, A Child under the age of (eighteen) years Alleged to be (Neglected) by Joan Lambert & Byron Harrison, Respondents. |
Two Child Protective proceedings, one alleging child abuse by the two respondents, the other alleging child neglect by both respondents, were filed on February 5, 1982. Denials were interposed on March 8, 1982. Because of the pendency of criminal actions against the named respondents involving the acts set forth in the petitions, these proceedings were adjourned on consent. The criminal actions having terminated, petitioner now moves for summa judgment by way of separate motions in each proceeding against each respondent.
The Child abuse petition, (N-23-82), alleges, in material part, that Tamara Lambert is an abused child within the meaning of Family Court Act § 1012(e)(i), in that respondents caused the child's death on February 2, 1982. The neglect petition, (N-19-82), alleges, in material part, that Debra Harrison, a half-sibling of Tamara Lambert, is a neglected child within the meaning of Family Court Act § 1012(f)(i)(B), in that respondents caused the death of the childs half-sibling on February 2, 1982. The operative allegations in each petition are identical.
Petitioner's four motions pursuant to CPLR 3212 contend that respondent Joan Lambert was indicted, tried and convicted of the crime of murder in the second degree (P.L. § 125.25 subd. 1), (Indictment No. 344-82) based upon the same acts specified in the petitions with respect to Tamara Lambert, and that Byron Harrison was indicted for the crime of assault in the second degree (PL § 120.05 subd. 2), (Indictment No. 343-82), and was convicted upon a guilty plea of the crime of assault in the third degree (PL § 120.00), based upon the same acts specified in the petition with respect to Tamara Lambert. Asserting that the respective convictions in the criminal actions constitute conclusive proof of the same allegations in the civil proceeding, (S.T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 344 N.Y.S.2d 938, 298 N.E.2d 105 and subsequent cases), and that evidence of abuse of Tamara Lambert by respondents and the establishment of the facts alleged in that petition makes out a prima-face case of neglect with respect to Debra Harrison, (Matter of Christina Maria C., 89 App.Div.2d 855, 453 N.Y.S.2d 33), movant seeks a finding that the respective children are abused and neglected children (Family Court Act § 1051(a)).
The opposing affidavits by Joan Lambert's attorney asserts the existence of questions of law and fact; the opposing affidavits by Byron Harrison's attorney points out deficiencies in the moving papers; the Law Guardian's affidavits, citing authority, support the motions as to Tamara Lambert and oppose the motions as to Debra Harrison.
Addressing petitioner's motions in Docket N-23-82 which seek a finding of child abuse as to Tamara Lambert, who concededly died prior to the filing of the petition, a serious question of sufficiency of the petition is presented. A motion for summary judgment searches the record, (Wilkinson v. Skinner, 34 N.Y.2d 53, 356 N.Y.S.2d 15, 312 N.E.2d 158), and requires a determination in the first instance that the child abuse petition states facts sufficient to constitute a cause of action, or, in this instance, a viable claim for relief. Child Protective proceedings, (F.C.A. Article 10), are civil proceedings designed to protect children from abuse and neglect. F.C.A. § 1011 clearly states the legislative intent.
Implicit in the foregoing, and essential to accomplishment of the stated purposes of the Article, is a child in being. A child who dies prior to the institution of the proceeding is not in need of protective procedures afforded nor can a dispositional order fulfill the statutory purpose. Examination of both...
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Theresa C., Matter of
...Seeking the Dismissal of Court Proceedings," 20 J.Fam.L. 217-239 (1981)). Important policy issues are involved. For example, in Mtr. of Lambert, 462 N.Y.S.2d 791, the Family Court dismissed an abuse case prior to trial where the child had died--as a result of the alleged abuse--prior to the......
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Suffolk County Dept. of Social Services on Behalf of Michael V. v. James M.
...in opposition to the summary judgment motion. Thus, summary judgment was properly granted to the petitioner (see, Matter of Lambert, 119 Misc.2d 326, 462 N.Y.S.2d 791; see also, Matter of JLP, 774 P.2d 624 [Wyo]; People in Interest of S.B., 742 P.2d 935 [Colo]. Moreover, under the circumsta......
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S.B., Matter of
...A neglect petition would also abate on the death of the child since there no longer remained anyone to be protected. Matter of Lambert, 119 Misc.2d 326, 462 N.Y.S.2d 791 (Family Ct., Suffolk Co. Abatement still occurs upon death in matrimonial actions. In re Crandall's Estate, 196 N.Y. 127,......
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TC, Matter of
...429 N.Y.S.2d 144 (Fam.Ct.Suffolk Co.1980); Matter of Sais, 94 Misc.2d 40, 404 N.Y.S.2d 507 (Fam.Ct.Suffolk Co.1978); Matter of Lambert, 119 Misc.2d 326, 462 N.Y.S.2d 791 (Fam.Ct.Suffolk Co.1983); Matter of Jason B., 117 Misc.2d 480, 458 N.Y.S.2d 180 (Fam.Ct.Richmond Co.1983); Matter of Ther......