IN RE: SUMMER Y.-T.

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

IN RE: SUMMER Y.-T., A Child Under the Age of Eighteen Years, etc., Richard Y., et al., Respondents-Respondents, Administration for Children Services, Petitioner-Appellant.

Decided: August 03, 2006

TOM, J.P., MARLOW, WILLIAMS, SWEENY, MALONE, JJ. Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for appellant. Louise Belulovich, New York, for Richard Y., respondent. Kenneth M. Tuccillo, Hastings-on-Hudson, for Donna T., respondent. Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), Law Guardian.

Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 27, 2005, which dismissed, after a fact-finding hearing, the neglect petition against respondent parents with respect to their daughter, unanimously affirmed, without costs.

 The petition posits neglect of Summer Y.-T. on respondent parents' failure to adequately care for her three older siblings, resulting in a finding of neglect with respect to those children in January 2002.   However, Family Court found that, by the summer of 2003, the parents were participating in mandated counseling services and adequately preparing for Summer's birth by, among other things, repairing and improving their apartment with the assistance of building management.   Regarding their care of the infant Summer, the court noted that the parents had raised three children from infancy without state intervention and that every evaluation indicated that the parents' limitations did not impair their ability to adequately care for children.

 The presentment agency failed to prove by a preponderance of the evidence that the subject child was in imminent danger due to parental failure to exercise a minimum degree of care (Nicholson v. Scoppetta, 3 N.Y.3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ).   A derivative finding of neglect would not have been proper inasmuch as the parents' conduct toward their other children was not so egregious as to support a conclusion that they lacked the requisite judgment to function as adequate parents (cf. Matter of Vincent M., 193 A.D.2d 398, 597 N.Y.S.2d 309 [1993] ).   Nor is the evidence that they suffer from developmental delays sufficient to support a per se finding of neglect (Matter of Daniel C., 47 A.D.2d 160, 166, 365 N.Y.S.2d 535 [1975] ).

We have considered petitioner's remaining arguments and find them unavailing.