In re Suzanne RR.

Mugglin, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.), entered June 13, 2005, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondent’s child to be neglected. The issue presented on this appeal is whether Family Court properly granted summary judgment to petitioner in this Family Ct Act article 10 derivative neglect proceeding. While it is well established that Family Court is so authorized, summary judgment “remains a drastic procedural device which will be found appropriate only in those circumstances ‘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 Hannah UU., 300 AD2d 942, 943 [2002], lv denied 99 NY2d 509 [2003], quoting Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178, 182 [1994]; see CPLR 3212; Family Ct Act § 165 [a]). A finding of neglect “must be based on a preponderance of [the] evidence” (Family Ct Act § 1046 [b] [i]) and “proof of the . . . neglect of one child shall be admissible evidence on the issue of the . . . neglect of any other child of . . . the respondent” (Family Ct Act § 1046 [a] [i]; see Matter of D’Anna KK., 299 AD2d 761, 762 [2002]). To establish derivative neglect, the evidence must “ ‘demonstrate [ ] such an impaired level of [1013] parental judgment as to create a substantial risk of harm for any child in [that parent’s] care’ ” (Matter of Tiffany AA., 268 AD2d 818, 819-820 [2000], quoting Matter of Vincent M., 193 AD2d 398, 404 [1993]; accord Matter of Hunter YY., 18 AD3d 899, 900 [2005]; Matter of Hannah UU., supra at 944), and the prior determination of neglect must be sufficiently proximate in time “such that it can be reasonably concluded that the conditions still exist” (Matter of Hunter YY., supra at 900; see Matter of Hannah UU., supra at 944; Matter of D’Anna KK., supra at 763). Here, petitioner has failed to demonstrate the absence of any material issue of fact so as to warrant a grant of summary judgment. In the previous proceedings, respondent consented to a neglect finding based largely on conduct of her previous paramour, a man who, among other things, had been charged with endangering the welfare of children and who had been the subject of an indicated report of sexual abuse of a three-year-old child. She agreed that she failed to protect her children from his excessive corporal punishment, that the children were exposed to acts of domestic violence between her and the paramour, that the children were present when the paramour had a violent confrontation with their grandmother and that she was not able to protect the children from her paramour’s mental and physical abuse. In addition, she agreed that she left her children with her parents for a two-month period during which she had no contact with them. Although the allegations in the petition suggest that respondent’s choice of her current paramour, the child’s father, is an indicator that her judgment as a parent has not improved, the fact remains that the prior neglect proceeding stemmed from her relationship with a different individual. Under these circumstances, we cannot say, as a matter of law, that the conditions which presented a danger to respondent’s children have gone unchanged. Moreover, the dispositional order in the prior neglect proceeding—entered May 4, 2004, almost nine months prior to the birth of the subject child—directed respondent to participate in numerous counseling services designed to overcome obstacles to the return of her children. Petitioner submitted no proof that respondent failed to participate in these services and the record is silent as to whether any violation petitions were filed against her or if any permanent neglect proceeding was instituted. Thus, we conclude on this record that petitioner’s motion papers fail to establish a prima facie case of derivative neglect and that summary judgment finding that respondent derivatively neglected her newborn daughter—whose father is her current par [1014] amour—should not have been granted. Accordingly, respondent is entitled to a hearing on the allegations raised in the petition. Spain, Rose and Lahtinen, JJ., concur.