Amlinger v. Amlinger ( 1980 )

Order unanimously reversed, without costs, and matter remitted to Erie County Family Court for further proceedings, in accordance with the following memorandum: Erie County Family Court erred in ordering that the infant, Rachelle Amlinger, be placed in her mother’s physical custody and that the petition alleging abuse filed by the Erie County Department of Social Services be adjourned in contemplation of dismissal. It appears that the trial court took this action upon its own motion and such action, under the statute, requires petitioner’s and the infant’s attorney’s or Law Guardian’s consent (Family Ct Act, § 1039, subd [a]). No proof of these consents is revealed in the record before us, nor is there a recitation of such consents in the order appealed from. Under these circumstances the order must be reversed. With a complete fact-finding and dispositional record before us, we turn to the merits. The proof in the record demonstrates that this infant was thriving at the time of her discharge from the hospital on August 24, 1978 following her premature birth on July 31, 1978. The medical evidence reveals that on November 30, 1978 this four-month-old infant had numerous fractures including the skull, both arms, both legs, two ribs, both feet and both hands, a cauliflower ear and a burned hand. None of these existed at the time of her August discharge from the hospital. We find upon review of this record that the evidence amply supports a petition for neglect (Family Ct Act, § 1012, subd [f]), or abuse (Family Ct Act, § 1012, subd [e]). Upon a determination of neglect, placement should be made with the Erie County Department of Social Services pursuant to section 1055 of the Family Court Act. Accordingly, this matter is remitted to the trial court to make a determination consistent with this memorandum and to entertain such further proceedings as may arise in this case. (Appeal from order of Erie County Family Court—Family Ct Act, art 10.) Present—Cardamone, J. P., Simons, Hancock, Jr., Doerr and Moule, JJ.