IN RE: MIKAYLA B. (1999)

In this child protective proceeding (see Family Court Act Art. 10), petitioner Commissioner of Social Services moves for summary judgment (CPLR § 3212;  see Suffolk County DSS v. James M., 83 N.Y.2d 178, 630 N.E.2d 636, 608 N.Y.S.2d 940 (1994)) declaring that respondent Pamela F.'s youngest child, Mikayla B., born on January 23, 1998, is a neglected child.   As follows, the court finds that triable issues of fact exist and petitioner's motion should be denied.

 This child protective proceeding seeks a derivative finding that respondent neglected an “after-born” child (see, e.g., Matter of Brian W., 199 A.D.2d 1021, 606 N.Y.S.2d 105 (4th Dept.1993);  In re Cruz, 121 A.D.2d 901, 503 N.Y.S.2d 798 (1st Dept.1986)).   Specifically, petitioner contends that Mikayla is neglected based upon respondent's 1995 guilty plea to having recklessly endangered the life of her oldest child, Mikayla's half-sister, Amber, by violently shaking the seven-month-old infant, causing permanent brain damage and blindness (see People v. Pamela F., Docket No. 95K081448, Supreme Court, Kings County).   Respondent's conviction in Supreme Court constituted conclusive proof of neglect and abuse and thereby supported summary judgment in the Family Court proceeding concerning Amber precisely because it was based upon the same set of facts (see Matter of Jimmy A., 218 A.D.2d 734, 630 N.Y.S.2d 578 (2nd Dept.1995);  Family Court Act § 1046(a)(i)).

 However, unlike the prior proceeding, respondent has now raised material issues of fact with regard to whether her parenting abilities are still impaired.   Respondent contends that her attendance at psychotherapy sessions for more than one year and her completion of a parenting skills class have succeeded in correcting the parental deficiencies and impaired judgment she demonstrated with regard to Amber.   It is, therefore, improper to make a finding of neglect when respondent contends that her parental failings have been properly diagnosed and successfully treated.   See, e.g., Matter of H. Children, 156 A.D.2d 520, 548 N.Y.S.2d 586, 587 (2nd Dept.1989);  Matter of Baby Girl S., 174 Misc.2d 682, 687, 665 N.Y.S.2d 809, 812 (Fam.Ct.1997).

Accordingly, petitioner's motion is denied and a fact-finding hearing will be scheduled forthwith to determine whether Mikayla B. is a neglected child under Family Court Act § 1051.

PHILIP C. SEGAL, J.