Opinion
2011-12-23
In the Matter of CLEOPHUS M.B.Oneida County Department of Social Services, Petitioner;Erika B., Respondent,andTorrence B., Respondent–Respondent.John G. Koslosky, Esq., Attorney for the Child, Appellant.
Appeal from an order of the Family Court, Oneida County (James R. Griffith, J.), entered August 31, 2010 in a proceeding pursuant to Family Court Act article 10. The order dismissed the petition.John G. Koslosky, Attorney for the Child, Utica, appellant pro se. Peter J. Digiorgio, Jr., Utica, for respondent–respondent.
Appeal from an order of the Family Court, Oneida County (James R. Griffith, J.), entered August 31, 2010 in a proceeding pursuant to Family Court Act article 10. The order dismissed the petition.John G. Koslosky, Attorney for the Child, Utica, appellant pro se. Peter J. Digiorgio, Jr., Utica, for respondent–respondent.
MEMORANDUM:
As limited by his brief, the Attorney for the Child appeals from that part of an order entered following a fact-finding hearing that dismissed the petition insofar as it alleged that the child who is the subject of this proceeding was derivatively neglected by respondent father. We affirm. Although *886 Family Court Act § 1046(a)(i) permits evidence of the father's neglect of siblings of the child to be considered in determining whether the child was 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). Family Court properly concluded under the circumstances of this case that the evidence was insufficient to sustain a finding of derivative neglect ( see Matter of Ronald M., 254 A.D.2d 838, 839, 677 N.Y.S.2d 839).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.