# In re Evelyn B.

> Appellate Division of the Supreme Court of the State of New York · June 29, 2006 · 30 A.D.3d 913

URL: https://www.frixlaw.com/law-library/cases/5703608

## Case

- **Full name:** In the Matter of Evelyn B., a Child Alleged to be Abused and/or Neglected. Clinton County Department of Social Services, Respondent Melinda E., (And Another Related Proceeding.)
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** June 29, 2006
- **Citations:** 30 A.D.3d 913; 819 N.Y.S.2d 573
- **Precedential status:** Published
- **Opinion:** Dissent by Mugglin
- **Judges:** Cardona, Mugglin
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5703608

## Opinion text

Mugglin, J. (dissenting).
I respectfully dissent only because, in my view, petitioner failed to submit sufficient admissible proof to establish that respondent Melinda E. (hereinafter respondent) derivatively neglected this child. Previous neglect of children does not establish a prima facie case of derivative neglect of the current child without additional proof that the previous conditions of neglect are proximate in time so that “it can reasonably be concluded that the condition still exists” (Matter of D’Anna KK., 299 AD2d 761, 763 [2002] [internal quotation marks and citations omitted]). I would hold that the Tioga County proceedings between 1988 and 1998 are too remote in time to support the conclusion that those conditions of neglect still exist. While the two Broome County neglect proceedings are not as remote, the 2002 petition was adjourned in contemplation of dismissal and the 2004 petition and resulting order were improperly received in evidence, over objection, as neither was properly authenticated or certified (see generally CPLR 4518). Moreover, even if admissible, the primary conditions of neglect alleged were that respondent maintained an unclean home and that she permitted the four children to visit with their father in his house, across the street from respondent’s, despite the presence in that household of the father’s brother, a child sex offender, who, in fact, sexually abused one of the children. As respondent now resides in Clinton County, with the father of her ninth child and his parents, it cannot reasonably be concluded that the conditions of neglect still exist. Hence, petitioner has not proven derivative neglect by a preponderance of the evidence.
Ordered that the order is affirmed, without costs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5703608. Public record. Not legal advice.