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Madison C. v. Lorna C.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 6, 2009

IN THE MATTER OF MADISON C. AND RILEY C. - NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT;
v.
LORNA C., RESPONDENT, AND PAUL C., RESPONDENT-APPELLANT.

Appeal from an order of the Family Court, Niagara County (John F. Batt, J.), entered April 23, 2007 in a proceeding pursuant to Family Court Act article 10. The order determined that Riley C. is an abused child and that Madison C. is a neglected child.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, AND GORSKI, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

Paul C. (respondent), the live-in boyfriend of respondent mother, appeals from an order adjudicating the mother's daughter Riley to be an abused child and the mother's daughter Madison to be derivatively neglected. Respondent contends thatFamily Court erred in determining that petitioner established by a preponderance of the evidence that Riley was an abused child inasmuch as the petition alleged, inter alia, that Riley was a severely abused child, and such a determination must be based upon clear and convincing evidence (see Family Ct Act § 1051 [e]). Respondent is correct with respect to the standard of review to be applied in determining whether a child is severely abused. Nevertheless, we note that the court properly considered in the alternative whether petitioner established by a preponderance of the evidence that Riley was an abused child rather than a severely abused child (see generally Matter of Julia BB., 42 AD3d 208, 218-219, lv denied 9 NY3d 815).

20090206

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