IN RE: JOSEPH Z. (Anonymous). (2019)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10, the mother appeals from an amended order of the Family Court, Kings County (Jacqueline D. Williams, J.), dated March 14, 2018.  The amended order, insofar as appealed from, granted that branch of the petitioner's motion which was for summary judgment against the mother on the issue of neglect of the subject child.

ORDERED that the amended order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the petitioner's motion which was for summary judgment against the mother on the issue of neglect of the subject child is denied, and the matter is remitted to the Family Court, Kings County, for further proceedings consistent herewith.

“[I]n an appropriate case, the Family Court may enter a finding of neglect on a summary judgment motion in lieu of holding a fact-finding hearing upon the petitioner's prima facie showing of neglect as a matter of law and the respondent's failure to raise a triable issue of fact in opposition to the motion” (Matter of Giovanni S. [Jasmin A.], 98 A.D.3d 1054, 1056, 950 N.Y.S.2d 777;  see Matter of Suffolk County Dept. of Social Servs. v James M., 83 N.Y.2d 178, 182–183, 608 N.Y.S.2d 940, 630 N.E.2d 636;  Matter of Alicia P. [Gregory P.], 123 A.D.3d 1135, 1135, 999 N.Y.S.2d 190;  Matter of Christopher Anthony M., 46 A.D.3d 896, 848 N.Y.S.2d 711).  “Summary judgment, of course, may only be granted in any proceeding when it has been clearly ascertained that there is no triable issue of fact outstanding;  issue finding, rather than issue determination, is its function” (Matter of Suffolk County Dept. of Social Servs. v. James M., 83 N.Y.2d at 182, 608 N.Y.S.2d 940, 630 N.E.2d 636).

Here, in support of that branch of its motion which was for summary judgment against the mother on the issue of neglect of the subject child, the petitioner included the evidence submitted at a hearing held pursuant to Family Court Act § 1028.  At that hearing, the mother, who is deaf and communicated through a sign language interpreter, gave various explanations for the scratches and other marks on the child's skin.  The mother testified that she had difficulty controlling the child, who has been diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder, and that she accidentally scratched the child while trying to restrain him.  Under these circumstances, the evidence at the hearing revealed triable issues of fact as to whether the mother neglected the child.

Accordingly, the Family Court should have denied that branch of the petitioner's motion which was for summary judgment against the mother on the issue of neglect, and we remit the matter to the Family Court, Kings County, for further proceedings on the petition (see Matter of Brandie B. [Barrington B.], 109 A.D.3d 987, 988, 971 N.Y.S.2d 701;  Matter of Ethan Z. [Zhen C.Z.], 93 A.D.3d 733, 734, 939 N.Y.S.2d 872).

BALKIN, J.P., LEVENTHAL, ROMAN and CONNOLLY, JJ., concur.