Opinion
CAF 01-01624
February 1, 2002.
Appeal from an order of Family Court, Oneida County (Cook, J.), entered July 17, 2001, which, inter alia, dismissed the neglect petition.
KOSLOSKY KOSLOSKY, UTICA (JOHN G. KOSLOSKY, LAW GUARDIAN, OF COUNSEL), FOR JAQUAN H.
JOHN A. HERBOWY, UTICA, FOR PETITIONER-RESPONDENT.
PETER J. DI GIORGIO, JR., UTICA, FOR RESPONDENT-RESPONDENT LATWANYA H.
PRESENT: HAYES, J.P., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the amended petition is reinstated and the matter is remitted to Family Court, Oneida County, for further proceedings in accordance with the following Memorandum:
Petitioner commenced this proceeding pursuant to Family Court Act article 10, alleging that respondents had neglected their infant son, who has special medical needs that render him extremely vulnerable to respiratory arrest and death and to other lesser complications. Family Court erred in granting respondents' motion to dismiss the amended petition on the ground that petitioner had failed to establish a prima facie case of neglect ( see, Matter of Camara R., 263 A.D.2d 710, 712-713; Matter of Colleen CC., 232 A.D.2d 787, 789; Matter of Lisa M., 222 A.D.2d 1088, 1088-1089; cf., Matter of Anne BB., 202 A.D.2d 806, 808; see generally, Matter of Chakeeo B.-G., 273 A.D.2d 915, 915-916). We therefore reverse the order, deny the motion, reinstate the amended petition and remit the matter to Family Court, Oneida County, for a new fact-finding hearing before a different Judge ( see, Matter of Michael A., 166 A.D.2d 898; see also, Matter of Elizabeth G., 255 A.D.2d 1010, 1012, lv dismissed 93 N.Y.2d 848, lv denied 93 N.Y.2d 814; Matter of Brianna R., 236 A.D.2d 830, 831). Because there must be a new hearing, we need not address the remaining contentions of the parties. We note, however, that petitioner may proceed upon a new or further amended petition and that the matter should be determined based upon the most current allegations and proof concerning the present circumstances of respondents and the child.