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IN THE MATTER OF ANNA F.

56 A.D.3d 1197 (2008)

In the Matter of ANNA F. and Another, Infants. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; IRA F., Appellant.

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

November 14, 2008.

Memorandum:

Respondent father appeals from an order adjudicating his children to be neglected and placing them in the custody of petitioner. We agree with the father that petitioner failed to establish by a preponderance of the evidence "that [the children's] physical, mental or emotional condition[s have] been impaired or [are] in imminent danger of becoming impaired" (Nicholson v Scoppetta, 3 N.Y.3d 357, 368 [2004];

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