SALEH RESPONDENT APPELLANT AND BRAUNA RESPONDENT v. << (2012)

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

ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER–RESPONDENT; SALEH A., RESPONDENT–APPELLANT, AND BRAUNA S., RESPONDENT.

CAF 10–02034

Decided: June 08, 2012

PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.

DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT. JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

SHEILA SULLIVAN DICKINSON, ATTORNEY FOR THE CHILDREN, BUFFALO, FOR SAMED S., MAURICE R., MALIK S., JOSEFT A., AMAURI R., AND ADELL H.-S.

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR FRANSHESKA D.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Respondent father appeals from an order adjudging several children under his care and control to be neglected and abused. Prior to the hearing on the issue whether the father was “a person legally responsible” pursuant to Family Court Act § 1012(g), the father had pleaded guilty to sexually abusing one child (hereafter, victim) and was sentenced to a term of incarceration. We reject the father's contention that the petition should have been dismissed because he pleaded guilty to a count in the indictment that alleged sexual contact in December 2004, not July 2006, as alleged in the Family Court petition. The proof adduced at the hearing on the issue whether the father was a “person legally responsible” established that the sexual contact occurred in December 2004. Thus, inasmuch as the proof does not conform to the allegations of the petition, the court may amend the allegations to conform to the proof (see § 1051[b] ), and the petition is not subject to dismissal on that ground. We have considered the father's remaining contentions and conclude that they are without merit.

Frances E. Cafarell

Clerk of the Court

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