IN RE: Jayann B. (Anonymous).  Dutchess County Department of Social Services

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Jayann B. (Anonymous).  Dutchess County Department of Social Services, appellant;  David K. (Anonymous), respondent.

2010–05102 (Docket No. N–1388–10)

-- June 14, 2011

DANIEL D. ANGIOLILLO, J.P. ANITA R. FLORIO ARIEL E. BELEN ROBERT J. MILLER, JJ. James Fedorchak, County Attorney, Poughkeepsie, N.Y. (Thomas P. Delpizzo of counsel), for appellant. Theodore J. Stein, Woodstock, N.Y., for respondent. Kelly S. Myers, Hyde Park, N.Y., attorney for the child.

Submitted—March 1, 2011

DECISION & ORDER

In a child neglect proceeding pursuant to Family Court Act article 10, the petitioner appeals, as limited by its brief, from so much of an order of the Family Court, Dutchess County (Posner, J.), dated April 22, 2010, as, without a fact-finding hearing, granted the respondent's motion to dismiss the petition.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the respondent's motion to dismiss the petition is denied, and the matter is remitted to the Family Court, Dutchess County, for a fact-finding hearing.

The petitioner, Dutchess County Department of Social Services (hereinafter DSS), filed a petition alleging that the respondent, who is the paramour of the mother of the subject child, lives with and acts as a parent substitute of the child.   DSS further alleged that, according to a 2004 “indicated” report of the Westchester Child Protective Services, the respondent allegedly, on several occasions, committed acts of sexual abuse and sodomy against his nephew, who was then eight years old.   Further, DSS alleged that in March 2010, during the course of DSS's investigation, the respondent denied the allegations regarding sexual abuse of his nephew, denied knowledge of the 2004 report despite evidence to the contrary, and acknowledged that he had never attended or completed any treatment program related to sex crimes.

The respondent moved to dismiss the instant petition, contending, inter alia, that DSS failed to allege any danger to the subject child based upon the respondent's alleged activity in 2004.   In the order appealed from, the Family Court, among other things, granted the motion to dismiss the petition without conducting a fact-finding hearing.   We reverse the order insofar as appealed from.

Under the circumstances of this case, the allegations in the petition were sufficient to require the Family Court to hold a fact-finding hearing (see Family Ct Act § 1027[a][ii];  Matter of Jonathan M., 306 A.D.2d 413, 414;  Matter of Dutchess County Dept. of Social Servs. v Peter B., 224 A.D.2d 617;  Matter of Rhonda T., 99 A.D.2d 758, 759).   Accordingly, the Family Court erred in granting the respondent's motion to dismiss the petition without a fact-finding hearing, and the matter must be remitted to the Family Court, Dutchess County, for a fact-finding hearing.

ANGIOLILLO, J.P., FLORIO, BELEN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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