Gerald M., Respondent-Appellant. v. << (2005)

On appeal from an order finding that he had neglected his children, respondent father contends that the evidence concerning the conditions of his residence was insufficient to establish neglect under Family Court Act § 1012(f)(i)(A) and that Family Court's finding is against the weight of the evidence.   We agree.   This is not a case in which the conditions of respondent's residence were “deplorable and unsanitary” (Matter of Todd D., 9 A.D.3d 462, 463, 780 N.Y.S.2d 180;  see Matter of Jessica DiB., 6 A.D.3d 533, 534, 775 N.Y.S.2d 69).   Rather, although respondent's residence was in a state of disarray and was generally messy, there was no evidence of unsanitary or unsafe conditions warranting a finding of neglect (cf. Jessica DiB., 6 A.D.3d at 534, 775 N.Y.S.2d 69;  Matter of Shavon H., 1 A.D.3d 123, 766 N.Y.S.2d 208;  Matter of Mariah CC., 302 A.D.2d 799, 801, 756 N.Y.S.2d 661;  Matter of Noemi B., 273 A.D.2d 304, 708 N.Y.S.2d 477;  Matter of Lillian H., 254 A.D.2d 237, 679 N.Y.S.2d 142;  Matter of Kathleen GG., 254 A.D.2d 538, 539-540, 678 N.Y.S.2d 689;  Matter of Billy Jean II., 226 A.D.2d 767, 640 N.Y.S.2d 326).   The fact that the court did not credit the testimony of either respondent or the children's mother concerning the reason for the state of disarray of the residence “does not obviate the need for affirmative proof of neglect” (Matter of Kenneth V. [Appeal No. 2], 307 A.D.2d 767, 769, 761 N.Y.S.2d 422).   We therefore reverse the order and dismiss the petition.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the petition is dismissed.

MEMORANDUM: