Daniel C. v. Bureau of Child Welfare , 365 N.Y.S.2d 535 ( 1975 )

Kupferman, J.

(concurring in part). As the majority recognizes : “ The finding of neglect had to rest solely upon the existence of her mental condition ”. This was amply demonstrated and the conclusion logically drawn by a concerned Judge after careful consideration. There is nothing invidious in this obvious finding, which was in the best interest of the children.

We concur in that part of the result which remands the matter to the Family Court, however, on the basis that the 18-month period of placement with the Commissioner of Social Services provided for in the dispositional order, has expired, and the mother certainly deserves a new hearing as to her current ability, within the purview of article 10 of the Family Court Act, to care for the children.

It should also be noted that this matter has been too much litigated (see Peres v. Sugarman, 499 F. 2d 761 [C. A. 2d, 1974]), and a dispositional hearing as to the past will accomplish naught in this tragic family situation. If the mother is now mentally stable or can arrange for other care, such as by competent relatives, then there should be no problem.

Murphy, Lane and Lynch, JJ., concur with Stevens, J. P.; Kupferman, J., concurs in part in an opinion.

Order Family Court of the State of New York, New York County, entered on December 1, 1972, unanimously modified, on the law, to strike the finding of neglect and to remand the matter to Family Court for a hearing on that issue and, as so modified, the order is otherwise affirmed, without costs and without disbursements. Order of said court entered on June 18, 1973, unanimously reversed, on the law, without costs and without disbursements.