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In re: Donnisha S.

April 19,2017

In October of 2017, the Administration of Child Services (ACS) filed an Article 10 proceeding on behalf of the child Donnisha, against the paternal grandmother and uncle.

A petition for neglect states that Ms. PW (grandmother), and Mr. S (uncle), are responsible for the child’s care under Family Court Act (FCA 1012). The petition alleges that the defendants are failing to properly care for the child (neglect), and are inflicting corporal punishment.

The petition alleges that Ms. PW admitted that she directed Mr. S to hit the child with four times because she put her fingers in a cake. The child sustained marks on her legs and bruising. The respondents admit that they no longer want the child in their home.

In October of 2016, the child was remanded to the care of the commissioner. The court placed an order directing that the child remain in the house of the maternal grandmother Lori W. Mr. S and Ms. PW appeared in court, and denied the allegations.

In January 2017 during a preliminary conference, respondents appeared in court. The ACS attorney said that the plan was for the defendants to complete parenting skills classes and undergo supervised visits with the child. Mr. S rejected this as he was not planning on serving as a parental figure. Ms. PW rejected the plan as well, stating that she wasn’t interested in continuing a relationship with the child.

In January of 2017, Bronx Defenders moved for a summary judgment and dismissal pursuant to Family Court Rule 1051. There were no disputed facts of record. Neither grandparent or uncle claim that they have a duty to care for the child.

ASC responded claiming that there are multiple issues, and the fact that Mr. S doesn’t want to care for the child doesn’t necessarily cancel the need for a trial. Also, Mr. S’s neglect would go unpunished, and the child would be left with no permanency.

The Legal Aid Society filed a response for Donnisha. They felt that a trail was necessary as triable issues of fact were present. To dismiss the matter would leave the child in “legal limbo.”

Motion for Summary Judgment

Article 10 of the Family Court Act doesn’t contain language granting a summary judgment (Family Court Act 165 (a), however, it provides that where methods of procedure are not provided, the provisions of Civil Practice Law shall apply (Family Court Act 165, Suffolk County Social Services v. James M. 83 NY2d 178, 182 [1994].

Courts have held that the party opposing the summary judgment must provide evidentiary proof (Zuckerman v. City of New York 49 NY2d 557, 562 [1980].

Motion to Dismiss

A case may be dismissed under Family Court Act 1051 if the facts are not submitted. In the Matter of Johnathen, the court stated that only at the end of a fact-finding hearing can the family court dismiss a petition.

The court finds that despite the agency’s failure to submit evidence, there are numerous triable issues and they can’t be addressed without a hearing.

As for a motion to dismiss, the court doesn’t have enough information to conclude that the court’s intervention isn’t entirely necessary.

The respondent child is currently remanded to the care of her maternal grandmother. Neither respondent has taken any action regarding the neglect allegations, so the court is unable to determine if a risk of harm to the child still exists (Matter of Julissa P. 52 Misc.3d 382).

The allegations if proven to be true could be harmful to the child. Dismissal of the petition would take away the ACS’s opportunity to fully present their case and prove their allegations. To fairly adjudicate the case and illustrate the need for the court’s assistance, the court must gather evidence sufficient to resolve any issue of fact.

In summary, considering the issues necessary for a successful motion for dismissal of a neglect petition pursuant to Family Court Act 1051or CPLR 3212, considering the current case at bar leads the court to believe it is unwarranted. This doesn’t however, preclude a new motion be filed (via Family Court Act 1051), by respondent’s counsel.

If you have a family law matter, speak with the legal professionals at Stephen Bilkis and Associates. They have offices throughout New York, including locations in Manhattan, the Bronx, Brooklyn, Staten Island, Queens, Suffolk County, Nassau County and Westchester County. Call them today for a free consultation at 1-800-NYNYLAW.

 

 

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