Opinion
No. NN–03907–11.
2012-02-15
In the Matter of JASMIN G–K, A child under eighteen years of age alleged to be neglected by Tracy G–K, Respondent.
Monroe County Law Department, by Patricia L. Woehrlen, Esq., for Petitioner. William H. King, Jr., Esq., for Respondent.
Monroe County Law Department, by Patricia L. Woehrlen, Esq., for Petitioner. William H. King, Jr., Esq., for Respondent.
Beth Ann Ratchford, Esq., for the Child.
DANDREA L. RUHLMANN, J.
Petitioner Monroe County Department of Human, Division of Social Services moves for summary judgment for a finding that Jasmin (dob:—/—/—) is a child neglected by Respondent Tracy G–K. The Attorney for the Child supports the motion. Petitioner met its burden of proving that Jasmin is a child derivatively neglected by Respondent and Respondent failed to raise any triable issues of fact warranting a hearing ( see Matter of Suffolk County Dep't of Social Services v. James M., 83 N.Y.2d 178 [1994] [summary judgment is an appropriate procedural device to be used in Family Ct Act Article 10 proceedings] ).
Respondent's Family Court history is extensive ( see this Court's decision Matter of Tasha M., 19 Misc.3d 1141[A] [Fam Ct, Monroe County 2008], affirmed 63 AD3d 1628 [4th Dept 2009] ). Respondent gave birth to eight children: Sean G–O (d/o/b:—/—/—); Kevin O. (d/o/b:—/—/—); Emanuel G–O (d/o/b:—/—/—); Sasha M. (d/o/b:—/—/—); Miche M. (d/o/b:—/—/—); Tasha M. (d/o/b:—/—/—); Sophia G–K. (—/—/—); Richard S. (d/o/b:—/—/—) (Ricky) and Jasmin. Sean was removed from Mother's care when he was approximately twelve (12) years old. All the other children were removed from Mother's care close to their births. Sean and Kevin were both deemed “neglected children” in 2002. Sean remained placed outside of Mother's care until he turned 18 and permanency was achieved in 2007. Mother's parental rights to Kevin were terminated in 2004 and he was adopted in 2006. Mother was found to have neglected Emanuel in 2004 and Sasha in 2005. Mother's parental rights to Emanuel and Sasha were terminated in 2007 affirmed on appeal, Matter of Emanuel T.O.M. and Sasha M., 55 AD3d 1415 [4th Dept 2008], lv denied11 NY3d 713 [2008] ). Miche and Tasha were deemed neglected children in 2006 and 2008 respectively. Although permanent neglect petitions against Respondent were filed with regard to these children they were withdrawn as the children's biological father was granted Family Court Article 6 custody. Sophia was adjudged a child neglected by Respondent on September 22, 2009 affirmed by the Appellate Division, Fourth Department ( Matter of Sophia M.G.-K, 84 AD3d 1746 [4th Dept 2011]; and Ricky most recently was adjudged a neglected child on November 29, 2011. The Court takes judicial notice of all prior orders.
At the fact-finding hearing regarding the neglect of Ricky concluded less than 3 months ago and the dispositional hearing completed only two weeks ago the unrefuted evidence shows that Respondent has never followed through with any mental health treatment and thus Respondent did not comply with all prior dispositional plans. Prior dispositional plans specifically require Mother, inter alia, to cooperate with Petitioner; sign and maintain releases; engage in mental health treatment including undergoing a new evaluation taking medications and attending appointments with her therapist; demonstrate skills and knowledge learned from previously attended parenting classes during contacts with the child; and to maintain suitable housing and income. Respondent's attorney's affidavit, submitted in opposition to this summary judgment motion, argues only that because the fact finding hearing covered a period of time until March 3, 2010 it is not proximate in time to Jasmin's birth. The affidavit does not address however that the dispositional order concerning Ricky was made only two weeks ago in which the Court considered all evidence with regard to Respondent's current circumstances. Although Respondent's counsel at oral argument contends that the burden of proof is different in a dispositional hearing, the salient point nonetheless is that Respondent failed to present any admissible evidence to raise a question of fact as to whether Respondent has complied with prior dispositional plans or indeed whether her situation has changed.
Mother never maintained suitable housing and where, as here, Mother's mental condition is the gravamen of prior findings, “proof of ongoing mental illness, along with the failure to engage in * * * treatment, which results in a parent's inability to care for his or her children in the foreseeable future, provides a basis for a finding of neglect” (Matter of Hannah UU, 300 A.D.2d 942 [3d Dept 2002], lv denied99 N.Y.2d 509 [2003], quoting Matter of Jesse DD., 223 A.D.2d 929, 931–932 [3d Dept 1996], lv denied88 N.Y.2d 803 [1996] ).
In Matter of Majerae T. (74 AD3d 1784 [4th Dept 2010] ), the Court affirmed a summary judgment neglect finding where the evidence before the court concerning an older child “demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [her] care” (see also Matter of Takia B., 73 AD3d 575 [1st Dept 2010]; Matter of Tradale CC, 52 AD3d 900 [3d Dept 2008] ). Similarly here the evidence before the Court resulting in the neglect finding of Ricky less than three months ago demonstrates that Jasmin would be at substantial risk if left in Respondent's care. A court may find derivative neglect relying upon evidence establishing that a parent's older children were previously determined to be neglected and that parent failed to address the issues that led to those neglect determinations (Matter of Sophia M.G.-K, 84 AD3d 1746 [4th Dept 2011]; Matter of Tasha M., 63 AD3d 1628 [4th Dept 2009]; Matter of Alexandria C., 48 AD3d 1047 [4th Dept 2008]; Matter of Sasha M., 43 AD3d 1401 [4th Dept 2007] ). “[T]he prior finding[s were] so proximate in time to the derivative proceeding[ ] that it can reasonably be concluded that the condition still exists” (Matter of Sophia M.G.-K., 84 AD3d 1746 [4th Dept 2011]; Matter of Sasha M., 43 AD3d 1401 [4th Dept 2007], quoting Matter of Hannah UU, 300 A.D.2d 942, 944 [3d Dept 2002], lv denied99 N.Y.2d 509 [2003];see also Matter of Evelyn B., 30 AD3d 913 [3d Dept 2006], lv denied7 NY3d 713 [2006] ).
Here, the unrefuted proof is that all of Respondent's older children were adjudged neglected by Respondent; none of her children remain in her care; and the underlying condition that led to the removal of her children still exists. Respondent submitted NO admissible proof raising any triable issue of fact, and thus the motion is granted, as supported by the Attorney for the Child.
NOW THEREFORE, it is
ADJUDGED that Respondent derivatively neglected Jasmin; and it is further
ORDERED that Petitioner's motion for summary judgment is granted; and it is further
ORDERED that Jasmin is a “neglected child” and this case shall proceed immediately to a dispositional hearing.