In re Aaron D. , 820 N.Y.S.2d 840 ( 2006 )

Appeal from an order of the Family Court, Erie County (Kevin M. Carter, J.), entered October 24, 2005 in a proceeding pursuant to Family Court Act article 10. The order dismissed the petition against respondent Andrea D.

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 petition against respondent Andrea D. is reinstated and the matter is remitted to Family Court, Erie County, to reopen the fact-finding hearing in accordance with the following memorandum: Family Court erred in granting the motion of respondent mother seeking dismissal of the petition against her at the close of the evidence presented by petitioner and the Law Guardian on the ground that petitioner failed to make out a prima facie case of abuse or neglect by respondent mother. “Where a motion is made by the respondent at the close of the petitioner’s case to dismiss a neglect [or abuse] petition, Family Court must determine whether the petitioner presented a prima facie case of neglect [or abuse] . . . , viewing the evidence in [the] light most favorable to the petitioner and affording it the benefit of every inference which could be reasonably drawn from the proof presented” (Matter of Christian Q., 32 AD3d 669, 670 [2006]). On this record, viewing the evidence in the light most favorable to petitioner and affording it the benefit of eveiy inference that can be reasonably drawn from the proof presented, we conclude that petitioner presented a prima facie case sufficient to withstand the motion of respondent mother to dismiss the petition against her. We therefore reverse the order, deny the motion, reinstate the petition against respondent mother and remit the matter to Family Court to reopen the fact-finding hearing consistent with our decision herein. Present — Pigott, Jr., P.J., Kehoe, Martoche, Smith and Pine, JJ.