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Decades Of Litigation Experience

Derivative Neglect

| Apr 14, 2021 | Firm News |

By Jennifer L. Garber, Esq.

A child is deemed to be neglected where the child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care.” (Family Court Act §1012(f)(I)). Derivative neglect occurs where there is such a fundamental defect in the parent’s understanding of the duties of parenthood to the point that it creates a substantial risk of harm for any child left in the parent’s care. Matter of Ahmad H., 46 A.D.3d 1357 (4th Dept. 2007). For example, derivative neglect may occur where a parent sexually abuses another child or has drug and/or alcohol dependency. Importantly, the facts must establish that the conditions of neglect are ongoing and that the parent/care giver’s understanding of the duties of parenthood are fundamentally impaired. Matter of Alyssa WW. (Clifton WW.), 106 A.D.3d 1157 (3rd Dept. 2013).

Moreover, a finding of neglect and/or derivative neglect occurs when the other parent/care giver “fails to take sufficient action to prevent the harm” and his or her actions fall below the minimum degree of care that can be expected of a parent. In re Alena O., 220 A.D.2d 358, 362 (1st Dept. 1995). The Court’s charge each parent and/or care giver with taking the steps necessary to prevent the abuse or neglect of a child in his/her care. Id., In re J. Children, 216 A.D.2d 159 (1st Dept. 1995); Commissioner of Social Servs. ex rel. Joanne W. v. Edyth W., 210 A.D.2d 328 (2nd Dept. 1994).

Thus, if you are a parent and the other parent of your child(ren) is abusing or neglecting your child(ren), it is your duty to intervene and take actions to prevent such abuse or neglect and protect the child in your care, lest you be chargeable with neglect and/or derivative neglect.