| Matter of Desmond LL. |
| 2009 NY Slip Op 03431 [61 AD3d 1309] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Desmond LL. and Another, Children Alleged to beNeglected. Tompkins County Department of Social Services, Appellant; Charlene MM.,Respondent. |
—[*1] Miller & Mayer, L.L.P., Ithaca (R. James Miller of counsel), for respondent. Mary Cosgrove Militano, Law Guardian, Scotia.
Malone Jr., J. Appeal from an order of the Family Court of Tompkins County (Sherman, J.),entered July 7, 2008, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondent's children to be neglected.
By order of the Family Court of Dutchess County, respondent's two children, Desmond LL.(born in 2003) and Joshua LL. (born in 2006), were adjudicated neglected by her in July 2006and placed in foster care with the children's paternal grandmother, who resided in TompkinsCounty. Respondent thereafter relocated to Tompkins County and enjoyed visitation with thechildren. After one unsupervised visitation, Joshua was returned to his grandmother with injurieson the tops of his feet that were suspicious for abuse. Petitioner then moved in Dutchess CountyFamily Court to hold respondent in violation of the July 2006 dispositional order. Theproceeding was transferred to the Tompkins County Family Court and the instant neglectpetition was substituted for the previously filed motion. At the conclusion of a fact-findinghearing, Family Court dismissed the petition, concluding that petitioner had failed to [*2]offer sufficient proof that respondent had neglected the children.Petitioner now appeals.
Although petitioner presented medical testimony to establish that the injuries to Joshua's feetwere consistent with cigarette burns, respondent provided an alternate explanation for theinjuries, which was supported by the testimony of a dermatologist. Moreover, the child'sbehavior that respondent claimed was the likely cause of the injuries was, at one time, witnessedby one of petitioner's social workers. In light of this conflicting testimony regarding the natureand cause of the injuries to Joshua's feet, and giving deference to Family Court's credibilityassessments of the witnesses (seeMatter of Mary Kate VV., 59 AD3d 873, 875 [2009]), we decline to disturb FamilyCourt's determination that petitioner failed to establish by a preponderance of the evidence thatthe child was neglected (see Family Ct Act § 1012 [f]; § 1046 [b] [i]; Matter of Madison UU., 45 AD3d1225, 1225 [2007]). Considering that there is insufficient proof of neglect as to Joshua, therecan be no finding of derivative neglect as to Desmond. Contrary to petitioner's contention,Family Court applied the appropriate standard of proof and adequately set forth the findings offact and conclusions of law upon which its determination was based.
Peters, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed,without costs.