IN RE: TY'SHAWN B. (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.

Memorandum: In this Family Court Act article 10 proceeding, respondent mother appeals from an order that, inter alia, granted petitioner's motion for summary judgment seeking a determination that the mother derivatively neglected the subject child, who was born after the mother was found to have neglected her three other children. We reverse and deny petitioner's motion.

Initially, to the extent that the mother requests that we dismiss the neglect petition on the basis that she was prejudiced by the significant time delay between the filing of the petition and petitioner's motion for summary judgment, that contention is unpreserved for our review inasmuch as it was raised for the first time on appeal (see generally Matter of Tyshawn P., Jr. [Tyshawn P., Sr.], 230 AD3d 1578, 1578 [4th Dept 2024], lv denied 42 NY3d 912 [2025]; Ciesinski v Town of Aurora, 202 AD2d 984, 985 [4th Dept 1994]).

Nevertheless, we agree with the mother that Family Court erred in granting petitioner's motion for summary judgment. Summary judgment is, of course, an appropriate procedure in Family Court Act article 10 proceedings (see Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178, 182 [1994]; Matter of Celeste S. [Richard B.], 164 AD3d 1605, 1605 [4th Dept 2018], lv denied 32 NY3d 912 [2019]; see also Family Ct Act § 165 [a]). The movant, however, bears the initial burden of establishing its entitlement to the relief sought as a matter of law and eliminating all triable issues of fact (see Matter of Terrence G. [Terrence M.M.–Yvonne C.G.], 98 AD3d 1294, 1295 [4th Dept 2012]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), and petitioner did not satisfy its burden here.

A finding of derivative neglect may be made when a parent's neglect of one or more children is “so closely connected with the care of [the other] child [or children] as to indicate that [they are] equally at risk” of being neglected (Matter of Marino S., 100 NY2d 361, 374 [2003], cert denied 540 US 1059 [2003]; see Matter of Ryanna H. [Monique H.], 214 AD3d 1308, 1309-1310 [4th Dept 2023], lv dismissed 40 NY3d 964 [2023]; see generally Family Ct Act § 1046 [a] [i]). Although evidence of abuse or neglect of one child does not, standing alone, establish a prima facie case of derivative neglect against a parent, “[a] finding of derivative neglect may be made where the evidence with respect to the child found to be abused or neglected demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [the parent's] care” (Matter of Sean P. [Sean P.], 162 AD3d 1520, 1520 [4th Dept 2018], lv denied 32 NY3d 905 [2018] [internal quotation marks omitted]; see Matter of Jovon J., 51 AD3d 1395, 1396 [4th Dept 2008]). “In order [t]o sustain a finding of derivative neglect, the prior finding must be so proximate in time to the derivative proceeding so as to enable the factfinder to reasonably conclude that the condition still exists,” although there is “no bright-line, temporal rule” (Sean P., 162 AD3d at 1520 [internal quotation marks omitted]; see Matter of Elijah L.J. [LaToya J.], 173 AD3d 1184, 1185-1186 [2d Dept 2019]).

Here, we conclude that the court erred in granting the motion because petitioner's submissions did not satisfy its initial burden to show that the subject child was derivatively neglected (see generally Alvarez, 68 NY2d at 324). To the extent that petitioner relied on the court's prior order of disposition finding that the mother had neglected the three older children as the basis to support a finding of derivative neglect with respect to the subject child, we note that the prior order merely states that she neglected the older children through “[i]nadequate guardianship, thus placing the children at risk of harm.” Inasmuch as the prior order did not identify what conduct by the mother had been substantiated for purposes of making the “inadequate guardianship” finding with respect to the three older children, petitioner did not establish the egregiousness of that conduct or show that, with respect to the subject child, the potential harmful result of that conduct could be said to reasonably still exist (cf. Elijah L.J., 173 AD3d at 1185-1186; Sean P., 162 AD3d at 1520). In other words, the evidence supplied by petitioner did not establish, as a matter of law, the nature of the mother's conduct that supported the prior finding of neglect or its surrounding circumstances (cf. Matter of Madalynn W. [Shawn W.], 185 AD3d 1458, 1459 [4th Dept 2020]; Elijah L.J., 173 AD3d at 1185-1186).

In light of our conclusion that petitioner did not meet its initial burden on the motion, the burden never shifted to the mother, and denial of the motion “was required ‘regardless of the sufficiency of the opposing papers’ ” (Scruton v Acro-Fab Ltd., 144 AD3d 1502, 1503 [4th Dept 2016], quoting Alvarez, 68 NY2d at 324; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see generally Terrence G., 98 AD3d at 1295-1296).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court