IN RE: ANJANNE J. (2007)

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

IN RE: ANJANNE J., A Child Under the Age of Eighteen Years, etc., Anthony J., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

Decided: October 11, 2007

ANDRIAS, J.P., FRIEDMAN, WILLIAMS, BUCKLEY, SWEENY, JJ.

Randall S. Carmel, Syosset, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Ann E. Scherzer of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Claire V. Merkine of counsel), Law Guardian.

Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about January 3, 2006, finding that respondent-appellant derivatively neglected the subject child based on his abuse of the child's half sister, unanimously reversed, on the law, without costs, the finding of neglect vacated and the petition dismissed.

It is not legally possible to find abuse of a child by a person who is not legally responsible for the child's care (Family Ct. Act § 1012 [a]; see Matter of R./C. Children, 303 A.D.2d 172, 755 N.Y.S.2d 236 [2003] ). Therefore, as petitioner concedes, Family Court's unchallenged finding that appellant is not a person legally responsible for the half sister's care precluded its concurrent finding that he had abused her, and requires reversal of the derivative finding of neglect as to the subject child.

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