Kramer Levin Wins Appeal of Child Neglect Finding for Pro Bono Client

On March 20, 2024, Kramer Levin secured a victory in the Appellate Division, Second Department, for a pro bono client in a child neglect case, obtaining a reversal of a summary judgment decision finding that the client had derivatively neglected her two children.

In New York, a Family Court may find that a parent’s past neglect of one of their children also constitutes neglect of their other children; this is known as derivative neglect. However, the previous neglect finding must be sufficiently “proximate in time” to the derivative proceeding to support a presumption that the condition contributing to the parent’s previous neglect still exists. Here, the client had prior neglect findings from 2007 and 2009. Kramer Levin and our co-counsel Brooklyn Defender Services successfully argued that these findings were far too remote in time to support a derivative finding of neglect of the client’s two other children, who were born in 2020 and 2021. Litigation associate Drew Zagami argued the appeal in the Second Department, which agreed. The court issued a decision that further held, as Kramer Levin argued, that ACS had failed to establish its prima facie entitlement to summary judgment below, because its motion “relied solely on the prior neglect findings” and was utterly devoid of “any … evidentiary material.” The court reversed the Family Court’s decision and remanded the matter for a full fact-finding hearing.

The decision is important because it will be a useful precedent in future derivative neglect proceedings; as such, Brooklyn Defender Services plans to include the decision in its training materials.