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

IN RE: UNIQUA M., et al., Children Under the Age of Eighteen Years, etc., Gelanda M., et al., Respondents-Respondents, Commissioner of Social Services of the City of New York, Petitioner-Appellant.

Decided: July 01, 1999

ROSENBERGER, J.P., WILLIAMS, MAZZARELLI, LERNER and BUCKLEY, JJ. Patricia S. Colella, for Uniqua M., et al. Andrew H. Rossmer, for Respondents-Respondents. Alan G. Krams, for Petitioner-Appellant.

Orders, Family Court, Bronx County (Robert Torres, J.), entered on or about April 19, 1999, which, after a fact-finding hearing, made findings of neglect against respondent Gelanda M. based upon excessive corporal punishment, but made no finding against respondent Victor F. and dismissed the cases against him, and discharged Keyshan F. to respondents subject to conditions, unanimously modified, on the law and the facts, to the extent of reinstating the dismissed portions of the petition, making findings that the child Stanes M. is a child neglected by Victor F., and that the children Uniqua M. and Keyshan F. are children derivatively neglected by respondent Victor F., and continuing the stay on Keyshan F.'s discharge to his parents pending the determination of the dispositional hearing in Family Court, and otherwise affirmed, without costs.

Although Family Court properly determined that the hearing evidence was insufficient to support a finding of neglect against both respondents on the basis of domestic violence in front of the children (see, Family Court Act § 1012[f][I] ), the hearing evidence did warrant, in addition to the finding of neglect made by Family Court against respondent mother, a finding of neglect against respondent father, based upon his failure to take adequate measures, under the circumstances, to protect the child Stanes M. (see, Matter of Alena O., 220 A.D.2d 358, 361-362, 633 N.Y.S.2d 127).   Respondent father's failure in this regard also warrants a finding of derivative neglect against him with respect to the other children (see, e.g., Matter of Priscilla Cruz, 121 A.D.2d 901, 503 N.Y.S.2d 798).


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