IN RE: ALLISON B. (2007)

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

IN RE: ALLISON B., and Others, Dependent Children under the Age of Eighteen Years, etc., Josefina C., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

Decided: December 13, 2007

TOM, J.P., ANDRIAS, GONZALEZ, SWEENY, JJ.

Law Office of Elisa Barnes, New York (Elisa Barnes of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Susan B. Eisner of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Patricia S. Colella of counsel), Law Guardian.

Order, Family Court, New York County (Sara P. Schechter, J.), entered on or about August 15, 2006, which, insofar as appealed from, after a fact-finding hearing, found that respondent mother neglected the subject children, unanimously reversed, on the law, without costs, and the petition dismissed.

Despite evidence that respondent's apartment was “messy” and that her 16-month-old daughter suffered a minor burn on her bottom after she sat on the edge of a bed and touched an uncovered steam pipe while she was bouncing and playing on the bed with her father and sister, and according due deference to the findings of the trier of fact, given the uncontradicted testimony of both the ACS caseworker regarding the condition of the apartment and respondent concerning the circumstances of the burn and the prompt treatment thereof, the court's determination that respondent neglected her children within the meaning of Family Court Act § 1012(f)(i)(A) and § 1046(b)(i) was unsupported by a preponderance of the evidence.

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