MEMORANDUM AND ORDER
Appeal from an order of the Family Court of Chemung County (Mary M. Tarantelli, J.), entered June 9, 2021, which granted petitioners application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate the subject child to be neglected.
Respondent is the mother of four children, including the subject child (born in 2021). In 2019, respondents oldest two children (born in 2015 and 2017) were adjudicated to be neglected, a finding that was affirmed on appeal (see Matter of JaSire FF. [Jalyssa GG.], 206 A.D.3d 1076, 168 N.Y.S.3d 601 [3d Dept. 2022], lv denied 38 N.Y.3d 912, 2022 WL 4100065 [2022]). The oldest child was placed in the care of his maternal grandmother and the second oldest was placed in the care of her father. Respondents third child (born in 2019) was removed from respondents custody at birth, placed in foster care, and eventually found to be neglected. The dispositional orders issued in connection with these neglect findings required respondent, among other things, to remain under the supervision of petitioner, to undergo a mental health evaluation, to participate in domestic violence counseling and parenting education programs, to attend the childrens medical appointments, to provide a safe home environment and remain employed, and to use all resources available to ensure the mental, physical and emotional well-being of the children.
The subject child was removed from respondents custody eight days after birth, and petitioner then filed a petition alleging that respondent had neglected and derivatively neglected the child. Respondent moved to dismiss the petition for failure to state a claim, and petitioner opposed. Family Court denied the motion to dismiss. Thereafter, prior to any fact-finding hearing on the petition, petitioner moved for summary judgment as to that aspect of the petition alleging derivative neglect of the subject child, and respondent opposed. Family Court granted the summary judgment motion
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and issued a suspended judgment dispositional order (see Family Ct Act § 1053). Respondent appeals from both the denial of her dismissal motion as well as the granting of the summary judgment motion.
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,
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“A party seeking to establish neglect must show, by a preponderance of the evidence, first, that the [childs] physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and, second, that the actual or threatened harm to the [child] is a consequence of the failure of the caretaker to exercise a minimum degree of care in providing the [child] with proper supervision or guardianship” (Matter of Kieran XX. [Kayla ZZ.], 154 A.D.3d 1094, 1095, 62 N.Y.S.3d 572 [3d Dept. 2017] [internal quotation marks and citations omitted]; see Matter of Micah S. [Rogerio S.], 206 A.D.3d 1086, 1087, 169 N.Y.S.3d 195 [3d Dept. 2022]). Regarding the issue of derivative neglect, while proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of another child (see Family Ct Act § 1046[a][i]), such evidence “may not [serve as] the sole basis for a determination of derivative neglect unless the parents past conduct demonstrates fundamental flaws in the parents understanding of the duties of parenthood — flaws that are so profound as to place any child in his or her care at substantial risk of harm” (Matter of Messiah RR. [Christina RR.], 190 A.D.3d 1055, 1059, 137 N.Y.S.3d 600 [3d Dept. 2021] [internal quotation marks and citations omitted]; see Matter of Choice I. [Warren I.], 144 A.D.3d 1448, 1449, 43 N.Y.S.3d 526 [3d Dept. 2016]).
Turning first to respondents motion to dismiss the petition for failure to state a claim, Family Court properly denied this motion. In determining such a motion, Family Court “must accept as true the allegations set forth in the petition, grant the petitioner all favorable inferences that can be drawn therefrom, and determine whether the petition sets forth sufficient factual allegations which, if proven at trial by a preponderance of the evidence, would sustain a finding of neglect” (Matter of Aydden OO. [Joni PP.], 180 A.D.3d 1208, 1209, 119 N.Y.S.3d 599 [3d Dept. 2020] [internal quotation marks and citation omitted], lv dismissed 35 N.Y.3d 996, 125 N.Y.S.3d 674, 149 N.E.3d 435 [2020]). Pleadings must be afforded “a liberal construction” (Matter of Alan FF., 27 A.D.3d 800, 801, 811 N.Y.S.2d 158 [3d Dept. 2006] [internal quotation marks and citation omitted], lv denied 7 N.Y.3d 741, 819 N.Y.S.2d 874, 853 N.E.2d 245 [2006]; see Matter of Chester HH. v. Angela GG., 208 A.D.3d 945, 947, 173 N.Y.S.3d 362 [3d Dept. 2022]).
The petition referenced the two prior findings of neglect against respondent, concerning a total of three children, with the most recent neglect finding being just over a year prior to the filing of the petition. The prior neglect findings involved, among other things, respondents angry outbursts in front of the children and untreated mental health needs. The petition asserted that none of those children had yet been returned to respondents care, and that respondent had failed to fully comply with the terms of previous dispositional orders, including engaging in counseling and maintaining stable housing. Further, the petition alleged that respondent concealed the fact that she was pregnant with the subject child and failed to obtain appropriate prenatal care. Accepting the foregoing allegations as true and viewing them in the light most favorable to petitioner, the petition sufficiently stated claims for neglect and derivative neglect (see Matter of Aydden OO. [Joni PP.], 180 A.D.3d at 1209, 119 N.Y.S.3d 599; Matter of JaSire FF. [Jalyssa GG.], 206 A.D.3d at 1079, 168 N.Y.S.3d 601; see generally Matter of Natalee M. [Nathan M.], 155 A.D.3d 1466, 1468, 66 N.Y.S.3d 58 [3d Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957442 [2018]; Matter of Evelyn B., 30 A.D.3d 913, 916, 819 N.Y.S.2d 573 [3d Dept. 2006], lv denied 7 N.Y.3d 713, 824 N.Y.S.2d 605, 857 N.E.2d 1136 [2006]).
Nevertheless, Family Courts decision granting petitioners summary judgment motion was in error. “Summary judgment is rarely used in Family Court proceedings, and is only appropriate when no triable issue of fact exists” (Matter of Karmny QQ. [Steven QQ.], 114 A.D.3d 1101, 1102, 981 N.Y.S.2d 217 [3d Dept. 2014] [citations omitted]; see Matter of Kai G. [Amanda G.], 197 A.D.3d 817, 820, 153 N.Y.S.3d 207 [3d Dept. 2021]). “[I]ssue finding, rather than issue determination, is [the motions] function” (Matter of Hannah UU., 300 A.D.2d 942, 943, 753 N.Y.S.2d 168 [3d Dept. 2002] [internal quotation marks and citation omitted], lv denied 99 N.Y.2d 509, 760 N.Y.S.2d 100, 790 N.E.2d 274 [2003]).
Upon review of the record and considering the nature of the prior neglect findings, the passage of time, and the questions concerning the degree of progress made by respondent over that time, we find that there are triable issues of fact precluding summary judgment (see CPLR 3212[b]; Matter of Karmny QQ. [Steven QQ.], 114 A.D.3d at 1103, 981 N.Y.S.2d 217; Matter of Brandie B. [Barrington B.], 109 A.D.3d 987, 988, 971 N.Y.S.2d 701 [2d Dept. 2013]; Matter of Suzanne RR., 35 A.D.3d 1012, 1013–1014, 826 N.Y.S.2d 785 [3d Dept. 2006]). Petitioners motion was centered upon the two prior findings of neglect and respondents failure to abide by the corresponding orders of disposition, as outlined above. However, the petition itself acknowledged that respondent had recently become more compliant with petitioner, resulting in expanded visitation with her children, and had been making improvements in her engagement with services and communication skills. According to the petition, respondent had put together a safety plan for the subject child to live with her, and petitioner saw this as “a strength” and was “hopeful in working with” respondent on this plan. Further, petitioner pointed out in opposition to the motion that she had improved her housing and employment situation and ended a relationship with an abusive partner.
Accordingly, the matter must be remitted for a fact-finding hearing concerning the allegations in the petition (see Matter of Aiden XX. [Jesse XX.], 104 A.D.3d 1094, 1097, 962 N.Y.S.2d 726 [3d Dept. 2013]; Matter of Suzanne RR., 35 A.D.3d at 1014, 826 N.Y.S.2d 785). Under the circumstances, we find it appropriate to remit to a different judge for the purpose of conducting the hearing.
ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Chemung County for further proceedings not inconsistent with this Courts decision before a different judge.
FOOTNOTES
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. Although Family Court indicated during an appearance that it had granted summary judgment, and made further reference in its dispositional order to summary judgment having been granted, the record on appeal contains no written order awarding such relief.
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. Contrary to petitioners contention, it was not necessary for respondent to file a notice of appeal from the order denying the motion to dismiss, because the appeal from the final dispositional order necessarily “brings up for review all non-final orders that affected the judgment” (Matter of Aiden XX. [Jesse XX.], 104 A.D.3d 1094, 1095 n 3, 962 N.Y.S.2d 726 [3d Dept. 2013] [internal quotation marks and citation omitted]; see Matter of Kristie GG. v. Sean GG., 168 A.D.3d 25, 27 n 1, 91 N.Y.S.3d 292 [3d Dept. 2018]).
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. The attorney for the child has submitted an appellate brief in support of petitioners position.
Ceresia, J.
Lynch, J.P., Clark, Pritzker and Fisher, JJ., concur.