Opinion
130 CAF 15-01276.
02-11-2016
In the Matter of MADISON J.S., Tyler D.S., Bentley P.S., and Brooke R.S. Steuben County Department of Social Services, Petitioner–Appellant; Victoria M. and Jason W., Respondents–Respondents.
Casey E. Rogers, Bath, for Petitioner–Appellant. Sally A. Madigan, Attorney for the Children, Bath.
Casey E. Rogers, Bath, for Petitioner–Appellant.
Sally A. Madigan, Attorney for the Children, Bath.
Opinion
MEMORANDUM:
Petitioner appeals from an order that, insofar as appealed from, dismissed its petition to the extent that it alleged that Madison J.S., Tyler D.S., and Brooke R.S. (the subject children) were derivatively neglected by respondents. We affirm. Although Family Court determined that respondents neglected Bentley P.S., a sibling of the subject children, and Family Court Act § 1046(a)(i) permits evidence of that neglect to be considered in determining whether the subject children were neglected, “the statute does not mandate a finding of derivative neglect” (Matter of Jocelyne J., 8 A.D.3d 978, 979, 778 N.Y.S.2d 624), and “such evidence typically may not serve as the sole basis of a finding of neglect” (Matter of Evelyn B., 30 A.D.3d 913, 914, 819 N.Y.S.2d 573, lv. denied 7 N.Y.3d 713, 824 N.Y.S.2d 605, 857 N.E.2d 1136). Because there is no evidence in the record that the “neglect was repeated ... [or] was perpetrated on multiple victims,” and it is unclear whether the subject children “were nearby when the [neglect] occurred” (Matter of Cadejah AA., 33 A.D.3d 1155, 1157, 823 N.Y.S.2d 278), we conclude that the court did not err in refusing to make a finding of derivative neglect.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.