In re Xavier C. , 737 N.Y.S.2d 541 ( 2002 )

—In a proceeding pursuant to Family Court Act article 10, the father appeals from an order of the Family Court, Suffolk County (Lehman, J„), entered May 20, 1999, which granted the motion of Suffolk County Child Protective Services for summary judgment. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which she moves to be relieved of the assignment to prosecute this appeal.

Ordered that the motion is granted, Anna Martin is relieved as counsel for the appellant, and she is directed to turn over all papers in her possession to new counsel assigned herein; and it is further,

Ordered that Salvatore Adamo, PMB 185, 414 Sunrise Highway, Patchogue, N.Y. 11772-2254, is assigned as counsel to perfect the appeal; and it is further,

Ordered that the appellant’s counsel is directed to turn over a copy of the transcript of the proceedings to new assigned counsel; and it is further,

Ordered that new counsel shall serve and file a brief on behalf of the appellant within 90 days of this decision and order and the respondent may serve and file a brief within 120 days of this decision and order; by prior decision and order of this Court, we directed that the appeal be prosecuted on the original papers and on the typewritten briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.

Based upon this Court’s independent review of the record, we conclude that there are nonfrivolous issues with respect to, inter alia, the Family Court’s summary finding that the appellant’s four children were neglected because of the appellant’s domestic violence, notwithstanding that there was no evidence that any of the children witnessed the domestic violence. Under the circumstances, assigned counsel’s motion to be relieved as counsel is granted and new appellate counsel is assigned (see, Matter of Kotzker v Bonafilia, 284 AD2d 535). Altman, J.P., Smith, S. Miller and Cozier, JJ., concur.