MOTION PAPERS: 1 Notice of Motion of DSS, filed April 28, 2022; 2 Attorney Affirmation of Barbara Lynne Gifford, Esq., duly sworn to on the 28th day of April, 2022, together with Exhibits A — E1; and 3 Memorandum of Law in Support of Motion for Summary Judgment, seeking an Order upon Fact-Finding adjudicating the subject child, NL, born__, 2021, to be severely abused, abused and neglected by Tyler M. Zaugg. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. DECISION AND ORDER On September 8, 2021, DSS filed a Neglect/Abuse/Severe Abuse Petition, alleging that on or about July 4, 2021, Respondent neglected, abused and severely abused the subject child when he inflicted serious, life-threatening and non-accidental injuries on the subject child, causing the child’s death, on July 16, 2021. DSS now moves for a summary judgment adjudication on the petition based upon a certificate of conviction of the Respondent who was convicted of Manslaughter in the First Degree (Penal Law 125.20[4]) and Assault in the Second Degree (Penal Law 120.05[9]). The Respondent and the Attorney for the Child did not submit any papers in support or opposition to the motion.2 The relevant and undisputed facts are as follows: a) The subject child was born on ___________, 2021, to non-respondent parent DML and the Respondent. b) The child died on July 16, 2021. c) On September 8, 2021, almost two months after the death of the child, DSS filed a petition in this Court, against the Respondent, seeking an adjudication that the Respondent had neglected, abused and severely abused the child. d) DSS does not allege that the Respondent is the parent or person legally responsible for any other siblings or half-siblings of the child or any other children for whom the Respondent is legally responsible or are under his care.3 The NYS Legislature has determined that the underlying purpose of filing a petition, pursuant to Article ten of the Family Court Act (“FCA”) is “…to protect children from injury or mistreatment and to help safeguard their physical, mental and emotional well-being.” FCA 1011. Notwithstanding that purpose, it is well settled case law that the Court does not have jurisdiction over a neglect matter of a deceased child as the child cannot be the subject of a neglect petition. See Matter of Stephanie WW., 213 A.D.2d 818 (3d Dept 1995). Furthermore, a deceased child can only be the subject of an abuse or severe abuse petition, when there are surviving children to protect, which would be paramount in termination of parental rights proceedings, as to them, pursuant to FCA 1051(e) and Social Services Law 384-b (4)(e). See In re Alijah C., 1 NY3d 375, 390 (2004). Finally, FCA 1051(c) requires the Court to dismiss a petition when facts are insufficient to sustain the petition. Accordingly, based upon 1-3 and for the reasons set forth herein, the Court hereby denies the summary judgment motion and dismisses the petition, based upon insufficient facts to sustain the petition, due to lack of subject matter jurisdiction, pursuant to FCA 1051(c). Dated: July 26, 2022
