Opinion
April 11, 1983
In a neglect proceeding pursuant to article 10 of the Family Court Act, the appeal is from an order of the Family Court, Queens County (Corrado, J.), dated December 18, 1981, which dismissed the petition, without a hearing. Order reversed, without costs or disbursements, petition reinstated, and matter remitted to the Family Court for a hearing in accordance herewith. Pending the hearing, the infant is to remain in the custody of the appellant. "Article 10 of the Family Court Act makes it clear that a `fact-finding hearing' must be held on the issue of neglect, as raised by the petition, and findings of fact should be made" ( Matter of Debra VV, 52 A.D.2d 960, 961). Contrary to the assertion by the Family Court, a finding of neglect can be properly made despite the fact that the child has never lived with his mother ( Matter of Eugene G., 76 A.D.2d 781). It was error for that court to dismiss the petition without a hearing. Gibbons, J.P., Weinstein, Bracken and Niehoff, JJ., concur.