Matter of Alisha C. and Another, Children Alleged to be Neglected. April C., Appellant; Oswego County Department of Social Services, Respondent

Matter of Alisha C. and Another, Children Alleged to be Neglected. April C., Appellant; Oswego County Department of Social Services, Respondent. [666 NYS2d 95] [MAJORITY] —Order unanimously modified on the law and as modified affirmed without costs and petition against respondent April C. dismissed in accordance with the following Memorandum: Upon our review of the record, we conclude that there is insufficient evidence to support Family Court’s finding of neglect by respondent April C., the children’s mother. The court relied upon the statutory presumption of Family Court Act § 1046 (a) (ii). Although the record establishes that the children were abused by their father, there is no evidence of neglect by their mother, and the evidence is sufficient to rebut the statutory presumption. Thus, we modify the order by vacating the adjudication of neglect against respondent April C. (Appeal from Order of Oswego County Family Court, Roman, J.—Neglect.) Present—Denman, P. J., Green, Callahan, Balio and Fallon, JJ.