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In re Keyarei M.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


March 19, 2010

IN THE MATTER OF KEYAREI M. AND OTHERS.
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, RESPONDENT;
v.
NETZA M., APPELLANT.

Appeal from an order of the Family Court, Erie County (Patricia A. Maxwell, J.), entered August 1, 2008 in a proceeding pursuant to Family Court Act article 10. The order directed respondent to comply with an order of protection upon a finding of abuse.

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

As corrected through Wednesday, April 28, 2010

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

Memorandum

Respondent father contends that the evidence is legally insufficient to support Family Court's finding that he derivatively abused three of his children based upon his admission that he committed serious abuse in causing the death of their sister. We reject that contention. Pursuant to Family Court Act § 1046 (a) (i), "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the respondent." Furthermore, "[w]here the conduct which formed the basis for a finding of abuse as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists, a finding of abuse should be made as to the surviving child[ren]" (Matter of James P., 137 AD2d 461, 464 [1988]), and that is the case here. The father failed to preserve for our review his further contention that Family Court erred in failing to conduct a separate dispositional hearing and, in any event, that contention lacks merit (see Matter of Damion S., 300 AD2d 1039, 1040 [2002]).

We have considered the remaining contention of the father and conclude that it is without merit.

Present---Smith, J.P., Centra, Fahey and Pine, JJ.

20100319

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