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MATTER OF DAPHNE G.

308 A.D.2d 132 (2003)

763 N.Y.S.2d 583

In the Matter of DAPHNE G., a Child Alleged to be Neglected. DAVID G., Appellant; ADMINISTRATION FOR CHILDREN'S SERVICES, Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

August 21, 2003.

Attorney(s) appearing for the Case

Dodd R. Terry of counsel (Monica Drinane, Law Guardian, The Legal Aid Society, Juvenile Rights Division, attorney), for Daphne G.

John A. Pappalardo of counsel (Farber, Pappalardo & Carbonari, attorneys), for appellant.

Elizabeth I. Freedman of counsel (Francis F. Caputo on the brief; Michael A. Cardozo, Corporation Counsel, New York City, attorney), for respondent.

NARDELLI, J.P., SAXE and ROSENBERGER, JJ., concur with SULLIVAN, J.; ELLERIN, J., dissents in a separate opinion.

OPINION OF THE COURT

SULLIVAN, J.

The issue presented on appeal is whether a finding of neglect may properly be based on a father's conviction of attempted assault arising out of an incident of domestic violence against the mother, where the child was not present at the time and not even in the custody of the parents.

The subject child, Daphne G., was born on November 24, 1998. Thirteen days later...

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