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

IN RE: ELYSA “QQ”,1 Alleged to be a Neglected Child. Montgomery County Department of Social Services, Appellant; Sheila “RR”,1 Respondent.

Decided: April 30, 1998

Before CARDONA, P.J., and MIKOLL, CREW, WHITE and CARPINELLO, JJ. Kelli P. McCoski, Department of Social Services, Amsterdam, for appellant. Karen Judd, Law Guardian, Clifton Park, for Elysa“ QQ”.

Appeal from an amended order of the Family Court of Montgomery County (Going, J.), entered June 31, 1997, which, in a proceeding pursuant to Family Court Act article 10, granted respondent's motion to dismiss the petition.

Petitioner commenced this proceeding against respondent in April 1997 alleging, inter alia, that Elysa “QQ”, born in 1982, was a neglected child due to respondent's failure to exercise a minimum degree of care in supplying the child with adequate food, clothing or shelter (see, Family Ct.Act § 1012[f] [i] [A] ).   Respondent moved to dismiss the petition contending, inter alia, that she was not a “person legally responsible” for the child's care within the meaning of Family Court Act § 1012(g).2  Family Court granted the motion and this appeal by petitioner ensued.

 There must be a reversal.   On a motion to dismiss, this court must accept as true the allegations set forth in the petition (see, Matter of Mary AA. [Frank AA.], 175 A.D.2d 362, 363, 571 N.Y.S.2d 962;  Matter of Stefanel Tyesha C. [Leslie C.], 157 A.D.2d 322, 325, 556 N.Y.S.2d 280, appeal dismissed 76 N.Y.2d 1006, 564 N.Y.S.2d 716, 565 N.E.2d 1267) and afford the pleading a liberal construction (see, Matter of Stefanel Tyesha C. [Leslie C.], supra, at 325, 556 N.Y.S.2d 280).   Applying these principles to the matter before us, it is clear that Family Court erred in dismissing the petition without a fact-finding hearing.

 Assuming, without deciding, that respondent indeed is a “person legally responsible” for the child's care (see, Matter of Mary AA. [Frank AA.], supra, at 363, 571 N.Y.S.2d 962),3 the petition sets forth sufficient factual allegations which, if proven at trial by a preponderance of the evidence, would sustain a finding of neglect (see, Matter of Stefanel Tyesha C. [Leslie C.], supra, at 327, 556 N.Y.S.2d 280).   Specifically, the petition alleged that respondent refused to admit Elysa to her home after the child ran away and, in so doing, failed to provide the child with adequate food, clothing or shelter (see, Family Ct. Act § 1012[f][i][A] ).   Accordingly, this matter should proceed to a fact-finding hearing before Family Court.

ORDERED that the amended order is reversed, on the law, without costs, and motion denied.


2.   A “ ‘person legally responsible’ includes the child's custodian, guardian [or] any other person responsible for the child's care at the relevant time.   Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child” (Family Ct.Act § 1012[g] ).

3.   In this regard, petitioner alleged that respondent is the child's aunt and that respondent agreed to care for the child following the biological mother's relocation outside the United States.   Petitioner alleged that pursuant to that agreement respondent provided care, i.e., food, clothing and shelter, for the child for a period of approximately five months before the child apparently ran away from respondent's home.

CREW, Justice.


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