MatterofSumariaD. ( 2014 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 16, 2014 516695
________________________________
In the Matter of SUMARIA D.,
Alleged to be a Neglected
Child.
BROOME COUNTY DEPARTMENT OF
SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
MADELYN D. et al.,
Appellants.
________________________________
Calendar Date: September 4, 2014
Before: Peters, P.J., Stein, Garry, Lynch and Devine, JJ.
__________
Alena E. Van Tull, Binghamton, for Madelyn D., appellant.
Teresa C. Mulliken, Harpersfield, for Direll D., appellant.
Philomena Stamato, Broome County Department of Social
Services, Binghamton, for respondent.
Christopher A. Pogson, Binghamton, attorney for the child.
__________
Stein, J.
Appeal from an order of the Family Court of Broome County
(Connerton, J.), entered April 11, 2013, which, in a proceeding
pursuant to Family Ct Act article 10, granted petitioner's motion
for summary judgment adjudicating respondents' child to be
derivatively neglected.
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Respondents are the married parents of seven children, the
youngest of whom – Sumaria D. (born in 2012) – is the subject of
this proceeding. At the time of Sumaria's birth, respondents'
six other children had been removed from their custody as a
result of, among other things, respondents' history of mutual
acts of domestic violence committed in the children's presence.1
Within days of Sumaria's birth, Family Court granted petitioner's
pre-petition application for temporary removal of the child from
respondents' custody. One week later, petitioner commenced this
proceeding pursuant to Family Ct Act article 10, alleging that
Sumaria had been derivatively neglected based upon respondents'
neglect and permanent neglect of their other children.
Petitioner further alleged that, among other things, respondents
had failed to adequately address their domestic violence issues
through available preventive services as required by prior
dispositional orders.
In January 2013, following a Family Ct Act § 1027 hearing,
petitioner moved for summary judgment against both respondents on
the neglect petition, as well as for an order dispensing with its
obligation to make reasonable efforts to reunite Sumaria with
respondent Direll D. (hereinafter the father). Family Court
denied the latter request,2 but otherwise granted the motion for
summary judgment and entered a finding of derivative neglect
against respondents, who now appeal from that order.
1
Respondents' five oldest children (born in 2003, 2004,
2005, 2006 and 2007) were adjudicated to be neglected in 2008 and
permanently neglected in December 2011, and respondents' parental
rights as to those children were terminated (Matter of Madelyn D.
[Direll D.], 112 AD3d 1165 [2013]). Respondents' sixth child,
Xiomara D. (born in 2010), was adjudicated to be derivatively
neglected in 2010 (Matter of Xiomara D. [Madelyn D.], 96 AD3d
1239 [2012]), and respondent Madelyn D. has since judicially
surrendered her parental rights as to that child.
2
Petitioner has not appealed from that part of the order
that denied such request.
-3- 516695
We affirm. "[P]roof of the abuse or neglect of one child
shall be admissible evidence on the issue of the abuse or neglect
of any other child of . . . the respondent" (Family Ct Act § 1046
[a] [i]). "Derivative neglect is established where the evidence
demonstrates an impairment of parental judgment to the point that
it creates a substantial risk of harm for any child left in that
parent's care" (Matter of Xiomara D. [Madelyn D.], 96 AD3d 1239,
1240 [2012] [internal quotation marks and citations omitted];
accord Matter of Karm'Ny QQ. [Steven QQ.], 114 AD3d 1101, 1102
[2014]; Matter of Alyssa WW. [Clifton WW.], 106 AD3d 1157, 1158
[2013]; see Matter of Michael N. [Jason M.], 79 AD3d 1165,
1167-1168 [2010]). In this regard, "[a] prior determination [of
neglect] should be sufficiently proximate in time to reasonably
conclude that the problematic conditions continue to exist, but
there is no bright-line, temporal rule beyond which we will not
consider older child protective determinations" (Matter of Ilonni
I. [Benjamin K.], 119 AD3d 997, 998 [2014] [internal quotation
marks and citations omitted]). "Although it is a drastic
procedural device, Family Court is authorized to grant summary
judgment in a neglect proceeding where no triable issue of fact
exists" (id. at 997 [internal quotation marks and citation
omitted]; accord Matter of Alyssa WW. [Clifton WW.], 106 AD3d at
1158; see Matter of Jadalynn HH. [Roy HH.], 93 AD3d 1112, 1113
[2012]; Matter of Quinton GG. [Jessica HH.], 82 AD3d 1557, 1558
[2011]).
Here, the papers proffered by petitioner in support of the
motion for summary judgment included, among other things, the
prior neglect orders, which were based upon respondents'
admissions to mutual acts of domestic violence in the children's
presence, at least one of which required respondent Madelyn D.
(hereinafter the mother) to seek medical treatment at a local
hospital and resulted in physical injury to the father as well.
The parties admitted to engaging in "continuing and escalating"
domestic violence, and the father also admitted to violating a
prior court order. The parties' conduct led to the termination
of the father's parental rights as to five of their seven
-4- 516695
children in 2012,3 following the revocation of a suspended
judgment, in addition to the finding of derivative neglect as to
Xiomara. Further, it is evident from the record that neither
parent has demonstrated the ability to appreciate the severity of
the domestic violence and the safety concerns for their children
raised thereby. Notably, just two weeks after the May 2008
neglect adjudications, there was a reported incident of domestic
violence that involved the father wielding a screwdriver against
the mother. Petitioner's caseworker also described two reported
incidents of domestic violence and/or aggressive acts by the
father toward the mother in April 2011 and July 2011,
respectively, one of which resulted in the father being
criminally charged.
Notably, petitioner's submissions in support of its motion
also establish that respondents have failed either to undertake
or to successfully complete certain court-ordered services.
Moreover, despite the existence of a no-contact order of
protection, respondents continued to have regular contact with
one another, and Sumaria apparently was conceived during the
pendency of that order. Under these circumstances, we find that
petitioner made a prima facie showing that the conditions that
gave rise to the previous neglect findings were not so remote in
time as to preclude a finding of derivative neglect and, in fact,
continue to exist (see Matter of Ilonni I. [Benjamin K.], 119
AD3d at 998; Matter of Xiomara D. [Madelyn D.], 96 AD3d at 1240;
compare Matter of Jamakie B. [Gwendolyn J.], 119 AD3d 939, 940
[2014]). Respondents' contentions in opposition to petitioner's
motion that, among other things, they have completed some
therapeutic services, are insufficient to raise a material
question of fact as to the continued existence of the
circumstances that gave rise to the prior neglect adjudications
(see Matter of Xiomara D. [Madelyn D.], 96 AD3d at 1240).
Accordingly, petitioner established its entitlement to judgment
as a matter of law on the issue of respondents' derivative
neglect of the child.
3
The mother executed a judicial surrender of the five
older children.
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As to the mother's assertion that Family Court should not
have considered her hospital records – which petitioner
improperly obtained without the mother's authorization or a
subpoena – we note that, while the physician/patient and related
privileges do not bar the admissibility of such records (see
Family Ct Act § 1046 [a] [vii]), the record does not reflect that
they were obtained pursuant to a subpoena, as required (see
Family Ct Act § 1038 [a]).4 We do not condone petitioner's
failure to follow the statutory protocol for obtaining the
mother's records. However, given that the information contained
in the records was offered to prove a fact – that respondents
were residing together before Sumaria's birth – that is readily
gleaned from other evidence, Family Court's consideration of such
records is not a basis for reversal. To the extent not
specifically addressed herein, respondents' remaining contentions
have been considered and found to be lacking in merit.
Peters, P.J., Garry, Lynch and Devine, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
4
Petitioner's reliance upon Social Services Law § 415 is
misplaced, as that statute pertains to a report made by a
mandated reporter that results in an investigation of child abuse
or maltreatment, and there is no indication in the record here
that the records in question were obtained by petitioner as a
result of a report made by the hospital.