IN RE: JAYLHON C. (Anonymous). (2019)

DECISION & ORDER

ORDERED that the order is affirmed, without costs or disbursements.

The petitioner, Administration for Children's Services (hereinafter ACS), first filed neglect petitions against the mother in 2006, when she had four children, Ciara C.-J., Jaheim C.-J., Darius C.-J., and Dontreis C.-J. ACS subsequently obtained findings of neglect against the mother as to those children and her younger children, Latifah C., Candace A. C., and Danazia C.-B., based on the mother's untreated mental illness and violent aggressive behavior.

In 2016, ACS filed the instant petitions alleging that the mother neglected the children Latifah, Candace, Ciara, Jaheim, Darius, Dontreis, and Danazia, and derivatively neglected her youngest child, Jaylhon C. In October 2017, ACS moved for summary judgment on the petitions, submitting numerous prior orders in support of its contentions that the mother suffers from untreated mental illness and failed to comply with court orders directing her to undergo a full mental health evaluation and to follow the resulting recommendations.  The Family Court granted the motion for summary judgment, and the mother appeals.

While there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, summary judgment pursuant to CPLR 3212 may be granted when it has been clearly ascertained that there is no triable issue of fact outstanding (see Family Ct Act § 165[a];  Matter of Suffolk County Dept. of Social Servs. v. James M., 83 N.Y.2d 178, 182, 608 N.Y.S.2d 940, 630 N.E.2d 636).

ACS established, prima facie, that the mother neglected the seven older children and derivatively neglected the youngest child (see Family Ct Act §§ 1012[f][i];  1046[a][i] ).  ACS submitted, through the affirmation of counsel, numerous prior orders of the Family Court, finding that the mother neglected the seven older children, directing her to undergo a full mental health evaluation and to comply with the resulting recommendations and treatment, and indicating that she had failed to do so (see Matter of Shay–Nah FF. [Theresa GG.], 106 A.D.3d 1398, 966 N.Y.S.2d 266;  Matter of Hannah UU., 300 A.D.2d 942, 753 N.Y.S.2d 168).  This evidence of neglect indicates a fundamental defect in the mother's understanding of the duties of parenthood, warranting a finding of derivative neglect as to the youngest child (see Family Ct Act § 1046[a][i];  Matter of Hope P. [Stephanie B.], 149 A.D.3d 947, 52 N.Y.S.3d 446).  The prior conduct is so proximate in time to the current proceedings that it can reasonably be concluded that the condition still exists (see Matter of Jerell P. [Qubilah G.], 157 A.D.3d 443, 66 N.Y.S.3d 136;  Matter of Dayyan J.L. [Autumn M.], 131 A.D.3d 1243, 17 N.Y.S.3d 729;  Matter of Alicia P. [Gregory P.], 123 A.D.3d 1135, 999 N.Y.S.2d 190).  In opposition to ACS's prima facie showing of entitlement to judgment as a matter of law, the affirmation of the mother's attorney failed to raise a triable issue of fact.

The mother's contention that the motion for summary judgment was not supported by an affidavit by a person having knowledge of the facts, as required by CPLR 3212(b), is improperly raised for the first time on appeal.

Accordingly, we agree with the Family Court's determination granting ACS's motion for summary judgment on the petitions (see Matter of Hope P. [Stephanie B.], 149 A.D.3d 947, 52 N.Y.S.3d 446).

CHAMBERS, J.P., MALTESE, LASALLE and BARROS, JJ., concur.