Opinion
2016–03820 Docket Nos. N–18952–13 N–18953–13
03-07-2018
In the MATTER OF DESHAWN R. (Anonymous). Administration for Children's Services, petitioner- respondent; v. Duchesne R. (Anonymous), appellant, et al., respondents. (Proceeding No. 1) In the Matter of Duchnah R. (Anonymous). Administration for Children's Services, petitioner- respondent; v. Duchesne R. (Anonymous), appellant, et al., respondents. (Proceeding No. 2)
Linda Braunsberg, Staten Island, NY, for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Elina Druker of counsel), for petitioner-respondent. Seymour W. James, Jr., New York, N.Y. (Dawne Mitchell and Diane Pazar of counsel), attorney for the child Duchnah R. Fredericka P. Bashir, Brooklyn, NY, attorney for the child Deshawn R.
Linda Braunsberg, Staten Island, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Elina Druker of counsel), for petitioner-respondent.
Seymour W. James, Jr., New York, N.Y. (Dawne Mitchell and Diane Pazar of counsel), attorney for the child Duchnah R.
Fredericka P. Bashir, Brooklyn, NY, attorney for the child Deshawn R.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERAppeal from an order of disposition of the Family Court, Kings County (Ilana Gruebel, J.), dated March 15, 2016. The order of disposition, inter alia, released the child Duchnah R. to the custody of the nonrespondent mother under the supervision of the Administration for Children's Services until May 15, 2016, and continued the placement of the child Deshawn R. in the custody of the Commissioner of the Administration for Children's Services until the completion of the next permanency hearing. The appeal from the order of disposition brings up for review an order of fact-finding of that court dated November 16, 2015, which, after a hearing, found that the father neglected Duchnah R. and derivatively neglected Deshawn R.
ORDERED that the appeal from so much of the order of disposition as released the child Duchnah R. to the custody of the nonrespondent mother under the supervision of the Administration for Children's Services until May 15, 2016, is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
The appeal from so much of the order of disposition as released Duchnah R. to the custody of the nonrespondent mother under the supervision of the Administration for Children's Services until May 15, 2016, must be dismissed as academic, as that portion of the order has expired (see Matter of Jemima M. [Aura M.], 151 A.D.3d 862, 56 N.Y.S.3d 563 ; Matter of Justin P. [Damien P.], 148 A.D.3d 903, 48 N.Y.S.3d 773 ). However, the appeal from that portion of the order of disposition which brings up for review the finding that the father neglected Duchnah R. is not academic, since the adjudication of neglect constitutes a permanent and significant stigma which might indirectly affect the father's status in future proceedings (see Matter of Jemima M. [Aura M.], 151 A.D.3d 862, 56 N.Y.S.3d 563 ; Matter of Justin P. [Damien P.], 148 A.D.3d 903, 48 N.Y.S.3d 773).
The petitioner commenced these related proceedings pursuant to Family Court Act article 10 alleging, inter alia, that the father neglected the child Duchnah R. (hereinafter Duchnah) and derivatively neglected the child Deshawn R. (hereinafter Deshawn). Following a hearing, the Family Court found, among other things, that the father neglected Duchnah and derivatively neglected Deshawn. The father appeals.
At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected (see Family Ct Act § 1046[b][i] ; Matter of Ena S.Y. [Martha R.Y.—Antonio S.], 140 A.D.3d 778, 780, 34 N.Y.S.3d 99 ; Matter of Kyra S. [Kirtan D.S.], 128 A.D.3d 970, 971, 9 N.Y.S.3d 609 ). In reviewing such a determination, the Family Court's assessment of the credibility of witnesses is entitled to considerable deference (see Matter of Mohammed J. [Mohammed Z.], 121 A.D.3d 994, 994, 995 N.Y.S.2d 126 ; Matter of Joseph O., 28 A.D.3d 562, 563, 813 N.Y.S.2d 213 ). Based upon our review of the record, the court's determination that the father neglected Duchnah is supported by a preponderance of the evidence (see Matter of Ishaq B. [Lea B.], 121 A.D.3d 889, 890, 994 N.Y.S.2d 405 ; Matter of Amerriah S. [Kadiatou Y.], 100 A.D.3d 1006, 1007, 955 N.Y.S.2d 147 ; Matter of Jocelyn D. [Maria D.], 100 A.D.3d 993, 954 N.Y.S.2d 471 ; Matter of Jonathan W., 17 A.D.3d 374, 375, 792 N.Y.S.2d 560 ). Furthermore, the father's neglect of Duchnah demonstrated a fundamental defect in his understanding of his parental duties sufficient to support the finding of derivative neglect with respect to Deshawn (see Family Ct Act § 1046[a][i] ; Matter of Ishaq. B. [Lea B], 121 A.D.3d at 890, 994 N.Y.S.2d 405 ; Matter of Aliciya R., 56 A.D.3d 784, 785, 869 N.Y.S.2d 140 ).
BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.