IN RE: SASHA R. (Anonymous) (2023)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10, the attorney for the child appeals, and the petitioner separately appeals, from an order of the Family Court, Queens County (Margaret Morgan, J.), dated January 6, 2022.  The order, upon granting the father's motion, made at the close of the petitioner's case at a fact-finding hearing, to dismiss the petition insofar as asserted against him for failure to establish a prima facie case, dismissed the petition insofar as asserted against him.

ORDERED that the order is reversed, on the law, without costs or disbursements, the father's motion to dismiss the petition insofar as asserted against him is denied, the petition is reinstated insofar as asserted against the father, and the matter is remitted to the Family Court, Queens County, for further proceedings consistent herewith.

The Administration for Children's Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10, alleging, inter alia, that the father neglected the subject child.  At a fact-finding hearing, after ACS rested its case, the father moved to dismiss the petition insofar as asserted against him for failure to establish a prima facie case.  The Family Court granted the motion and dismissed the petition insofar as asserted against him.  The attorney for the child appeals, and ACS separately appeals.

On a motion to dismiss a petition for failure to establish a prima facie case, the petitioner's evidence must be accepted as true, and the petitioner must be afforded the benefit of every reasonable inference which may be drawn therefrom (see Matter of Da–Mynye M. [Joseph K.], 202 A.D.3d 685, 686, 158 N.Y.S.3d 619).  Here, accepting the evidence presented by ACS as true, and affording ACS the benefit of every favorable inference which may be drawn therefrom, ACS established a prima facie case that the father neglected the subject child (see Matter of Jermaine T. [Jairam T.], 193 A.D.3d 943, 146 N.Y.S.3d 662;  Matter of Ashantae H. [Shelly H.], 146 A.D.3d 453, 43 N.Y.S.3d 757;  Matter of Andre K. [Jamahal G.], 142 A.D.3d 1171, 38 N.Y.S.3d 248;  Matter of Jeaniya W. [Jean W.], 96 A.D.3d 622, 946 N.Y.S.2d 476;  Matter of Jessica R., 230 A.D.2d 108, 657 N.Y.S.2d 164).  Accordingly, the Family Court should have denied the father's motion to dismiss the petition insofar as asserted against him, and we remit the matter to the Family Court, Queens County, to complete the fact-finding hearing and to determine the petition insofar as asserted against the father on the merits.

DILLON, J.P., MILLER, DOWLING and WAN, JJ., concur.