Smith v. Maclin

—Appeal from an order of Family Court, Erie County (Mix, J.), entered April 26, 2000, which dismissed the petition seeking custody.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: In April 2000 petitioner commenced this proceeding pursuant to Family Ct Act § 651 seeking custody of her children. Contrary to petitioner’s contention, Family Court properly dismissed the petition without conducting an evidentiary hearing. By an order entered in September 1999, the children were found to be neglected and were released to the custody of their father subject to the supervision of the Erie County Department of Social Services. Petitioner therefore should have filed a petition pursuant to Family Ct Act § 1061 seeking modification of the September 1999 order (see Matter of Davies v Davies, 223 AD2d 884, 886), and her “procedural error in seeking relief under Family Court Act article 6 provides a proper basis for dismissal” (Matter of Matthew W. v Sandra W., 291 AD2d 693, 694). Present—Pigott, Jr., P.J., Green, Wisner, Scudder and Kehoe, JJ.