Matter of Kyle L. (Salome T.)

2019 NY Slip Op 2877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 2019
• Docket: Docket No. N-2669-18
• Status: Published

Opinion

Matter of Kyle L. (Salome T.) (2019 NY Slip Op 02877)

Matter of Kyle L. (Salome T.)

2019 NY Slip Op 02877

Decided on April 17, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 17, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
ROBERT J. MILLER
LINDA CHRISTOPHER, JJ.

2018-04789
(Docket No. N-2669-18)

[*1]In the Matter of Kyle L. (Anonymous), appellant. Westchester County Department of Social Services, petitioner;

and

Salome T. (Anonymous), respondent-respondent.

Andrew W. Szczesniak, White Plains, NY, attorney for the child, the appellant Kyle L.

Eve Bunting-Smith, White Plains, NY, for respondent-respondent.

John M. Nonna, County Attorney, White Plains, NY (Linda Trentacoste and Justin R. Adin of counsel), for petitioner.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10, the child appeals from an order of the Family Court, Westchester County (Nilda Morales Horowitz, J.), entered March 27, 2018. The order, sua sponte, dismissed the petition with prejudice for failure to state a cause of action.

ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Westchester County, for further proceedings in accordance herewith.

The subject child, Kyle L., allegedly was subjected to unnecessary and potentially adverse medical procedures at the behest of the mother in September 2016. Thereafter, the petitioner, Westchester County Department of Social Services, commenced a proceeding pursuant to Family Court Act article 10, alleging that the mother had neglected the child. The Family Court effectively held the neglect proceeding in abeyance pending the outcome of a concurrent Family Court Act article 6 custody proceeding before a different Family Court Judge. Subsequently, the court, sua sponte, dismissed the original neglect petition without prejudice. The petitioner, upon discovering that the original petition had been dismissed, filed a second, substantially identical neglect petition dated March 1, 2018. The court, observing that an interim order in the custody proceeding had awarded custody to the father and that the mother had not sought parental access to the child for an extended period of time, sua sponte, dismissed the second neglect petition with prejudice for failure to state a cause of action. The child appeals.

Under the circumstances of this case, the allegations in the second neglect petition were sufficient to require the Family Court to hold a fact-finding hearing (see Family Ct Act §§ 1027[b][i]; 1051[c]; Matter of Zeykis B. [Vincent B.], 137 AD3d 1121, 1122; Matter of Cameron [*2]K. [Samuel M.], 104 AD3d 688, 688; Matter of Jayann B. [David K.], 85 AD3d 911, 912; Matter of Chandler D., 16 AD3d 684, 685; Matter of Jonathan M., 306 AD2d 413, 414). Accordingly, we reverse the Family Court's order dismissing the second neglect petition, and remit the matter to the Family Court, Westchester County, for a fact-finding hearing, and a determination on that petition thereafter.

MASTRO, J.P., CHAMBERS, MILLER and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court