Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re N.H.

Family Court, Onondaga County

May 3, 2017

In the Matter of N.H.

          Robert Rhinehart, Esq., Attorney for the Child, of Syracuse, New York, Louis P. Dettor, Esq. Attorney for the Onondaga County Department of Children and Family Services, Amanda McHenry, Esq. of counsel to the Hiscock Legal Aid Society, Attorney for the Respondent.

          MICHAEL L. HANUSZCZAK, J.

         On March 17, 2017, the Attorney for the Child filed a motion for summary judgment pursuant to CPLR §3212 seeking an adjudication that the child N.H. (DOB XX/XX/XXXX) is a derivatively neglected child. On March 23, 2017 counsel for the Onondaga County Department of Children and Family Services submitted correspondence to the Court joining in the Attorney for the Child's motion. The attorney for S.H. (herein referred to as 'Mother') filed an affirmation in opposition to the summary judgment motion on March 28, 2017 and the Court heard oral argument by the attorneys on March 30, 2017. Thereafter, the Court rendered a bench decision denying the Attorney for the Child's motion and set forth on the record that a written decision as to a determination on the relief requested would be issued.

         As background, the Onondaga County Department of Children and Family Services (hereinafter referred to as 'County') filed a petition on September 4, 2015 seeking an adjudication that the mother's two older children, N.L.H. (DOB X/X/XXXX) and N.R.H. (DOB XX/XX/XXXX) were neglected as the mother had not provided adequate supervision or guardianship demonstrated by multiple incidents of domestic violence occurring in the mother's household involving her paramour F.M.. The County alleged that the multiple incidents of domestic violence that occurred in the home had a negative impact upon the children.

         Thereafter, on April 13, 2016 the County made application to the Court requesting the children be removed from the mother's care and custody due to the mother's continued cohabitation with her paramour. The Attorney for the Children joined in the County's request based upon disclosures made by the children. Thereafter, the Court conducted a hearing and placed the children in the care and custody of the County and the maternal grandmother was found to be a suitable relative for the children to reside with.

         The Court conducted a fact-finding hearing and issued a written decision on September 8, 2016 adjudicating the children to have been neglected by the mother. Thereafter, the Court conducted a dispositional hearing and on December 23, 2016 entered a "Decision on Disposition" continuing the child N.L.H.'s placement with the maternal grandmother under Article 10 of the Family Court Act and granted sole legal and physical custody of the child N.R.H. to the biological father under Article 6 of the Family Court Act.

         During the pendency of the aforementioned neglect proceeding the mother gave birth to N.H. The County subsequently filed a petition two days later seeking an adjudication that the child was derivatively neglected alleging that the mother had not fully ameliorated the conditions which led to the neglect adjudication and the removal of the child's half siblings.

         In his motion for summary judgment the Attorney for the Child argues that the prior proceedings and neglect adjudications made by the Court are sufficiently proximate in time to warrant a derivate neglect finding as there are no triable issues of fact. The Attorney for the Child further argues that the mother has not ameliorated the underlying conditions which led to the neglect findings and the fact that the mother's former paramour, Mr. M., is currently incarcerated does not resolve the underlying issues affecting the mother and the children.

         The attorney for the mother in her response claims the conditions which led to the prior adjudications and removal of the children N.L.H. and N.R.H. have been ameliorated and thus the child N.H. is not a derivatively neglected child within the meaning of FCA §1012. The attorney for the mother further asserts that the safety factors involving domestic violence no longer exist as her paramour has been incarcerated since August 22, 2016. In her responding affirmation the attorney for the mother also argues that the mother has been cooperative with investigators from the Onondaga County District Attorney's Office during the criminal proceedings against the paramour and a full stay away criminal order of protection has been issued against Mr. M. The attorney for the mother also claims that the mother has substantially participated in court ordered services.

         STANDARD OF LAW

         A child is deemed to be neglected where the child's "physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care." (FCA §1012(f)(i)). While evidence of the abuse or neglect of one child is admissible on the issue of the abuse or neglect of another child, such evidence does not in and of itself establish a prima facie case of derivative neglect. (FCA §1046(a)(i); Matter of Miranda F., 91 A.D.3d 1303).

         Summary judgment is a drastic procedural device rarely utilized in Family Court proceedings and is only appropriate in a neglect proceeding where no triable issue of fact exists. (Matter of Xiomara D. 96 A.D.3d 1239; Matter of Terrence G., 98 A.D.3d 1294). Prior to adjudicating a child to have been neglected, a respondent in the proceeding should be afforded great deference and provided an opportunity to be heard as to any possible defenses that may be asserted as a finding of neglect may result in the parent-child relationship to be intruded upon and potentially terminated. As such, when genuine issues of fact exist the respondent should be afforded a full evidentiary hearing. (Matter of Liliana G., 91 A.D.3d 1325).

         A prima facie case of derivative neglect is established where the evidence indicates a fundamental defect in the parent's understanding of the duties of parenthood to the point that it creates a substantial risk of harm for any child left in the parent's care. (Matter of Ahmad H., 46 A.D.3d 1357). In determining whether a child born after the underlying acts of neglect should be adjudicated derivatively neglected, the determinative factor is whether taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis of a prior neglect determination is sufficiently proximate in time to the derivative proceeding as to reasonably conclude that the problematic conditions continue to exist. (Matter of Dayyan J.L., 131 A.D.3d 1243; Matter of Alyssa WW, 106 A.D.3d 1158). During the proceedings the respondent may then demonstrate that "the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future" to avoid a derivative finding of neglect. (Matter of Dana T., 71 A.D.3d 1376; Matter of Justice T., 305 A.D.2d 1076; Matter of Baby Boy D., 144 A.D.3d 1026).

         There is no bright-line rule to define what constitutes "sufficiently proximate in time" as there are situations whereby a significant passage of time may be a dispositive factor and in other cases the circumstances may evince a continuing pattern over a significant period of time which demonstrate that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.