Opinion
2018–03941 2018–03943 2019–11955 Docket Nos. N–30473–15, N–30474–15, N–19106–16
01-22-2020
In the MATTER OF ARIANA M. (Anonymous). Administration for Children's Services, Respondent; v. Edward M. (Anonymous), Appellant. (Proceeding No. 1) In the Matter of Serina M. (Anonymous). Administration for Children's Services, Respondent; v. Edward M. (Anonymous), Appellant. (Proceeding No. 2) In the Matter of Samuel M. (Anonymous). Administration for Children's Services, Respondent; v. Edward M. (Anonymous), Appellant. (Proceeding No. 3)
Michael A. Fiechter, Bellmore, NY, for appellant. James E. Johnson, Corporation Counsel, New York, N.Y. (Jane L. Gordon and Jamison Davies of counsel), for respondent. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell of counsel), attorney for the children.
Michael A. Fiechter, Bellmore, NY, for appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (Jane L. Gordon and Jamison Davies of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell of counsel), attorney for the children.
ALAN D. SCHEINKMAN, P.J., WILLIAM F. MASTRO, JOHN M. LEVENTHAL, JOSEPH J. MALTESE, JJ.
DECISION & ORDER ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp. , 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements; and it is further,
ORDERED that the appeal from so much of the order of disposition dated March 9, 2018, as directed the father to comply with a final order of protection in favor of the child Ariana M. is dismissed as academic, without costs or disbursements, as the order of protection has expired; and it is further,
ORDERED that the order of disposition dated March 9, 2018, is affirmed insofar as reviewed, without costs or disbursements. The appeal from the order of fact-finding must be dismissed, because the order of fact-finding was superseded by the order of disposition dated March 9, 2018, relating to the child Ariana M., and by an order of disposition dated July 31, 2018, relating to the children Serina M. and Samuel M. The issues relating to the child Ariana M. raised on the appeal from the order of fact-finding are brought up for review and have been considered on the appeal from the order of disposition dated March 9, 2018. The issues relating to the children Serina M. and Samuel M. raised on the appeal from the order of fact-finding are brought up for review and have been considered on the related appeal from the order of disposition dated July 31, 2018 (see Matter of Serina M. , 179 A.D.3d 925, 118 N.Y.S.3d 116, 2020 WL 356127 [decided herewith] ).
The Administration for Children's Services (hereinafter ACS) commenced these proceedings pursuant to Family Court Act article 10, alleging, inter alia, that the father abused the child Ariana M. After a fact-finding hearing, the Family Court found, among other things, that the father had abused Ariana M. 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 Tammie Z. , 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038 ; Matter of Brianna M. [Corbert G.] , 152 A.D.3d 600, 58 N.Y.S.3d 534 ; Matter of Desiree P. [Michael H.] , 149 A.D.3d 841, 49 N.Y.S.3d 924 ). Here, the evidence adduced at the fact-finding hearing was sufficient to prove, by a preponderance of the evidence, that the father sexually abused the child Ariana M. (see Family Ct. Act §§ 1012[e][iii] ; 1046[b][i]; Matter of Brianna M. [Corbert G.] , 152 A.D.3d 600, 58 N.Y.S.3d 534 ; Matter of Desiree P. [Michael H.] , 149 A.D.3d 841, 49 N.Y.S.3d 924 ). The finding of sexual abuse of Ariana M. was supported by that child's testimony about the sleeping arrangements during parental access with the father, which included Ariana M. sleeping in the same bed as the father and his girlfriend. Ariana M. further testified that, when she was 13 years old, the father touched her breasts and vagina and tried to insert his finger into her vagina, and that she later found matter which she described as "a white mucousy thing" on her shorts.
We disagree with the father's contentions challenging the Family Court's findings that he abused Ariana M. based on the fact that Ariana M. was permitted to testify via Skype and based on certain evidentiary determinations by the court. Contrary to the father's contention, the court did not violate his Sixth Amendment right of confrontation by permitting Ariana M. to testify via Skype. The court properly balanced the father's due process right as against the trauma to Ariana M. in permitting her to testify via Skype (see Matter of Hannah T.R. [Soya R.] , 149 A.D.3d 958, 959, 53 N.Y.S.3d 645 ; Matter of Michael U. [Marcus U.] , 110 A.D.3d 821, 973 N.Y.S.2d 676 ; Matter of Q.-L.H. , 27 A.D.3d 738, 815 N.Y.S.2d 601 ). The father was present in the courtroom during the testimony, and the father's attorney cross-examined Ariana M. on the father's behalf (see Matter of Hannah T.R. [Soya R.] , 149 A.D.3d at 959, 53 N.Y.S.3d 645 ; cf. Matter of Michael U. [Marcus U.] , 110 A.D.3d 821, 973 N.Y.S.2d 676 ; Matter of Q.-L.H. , 27 A.D.3d 738, 815 N.Y.S.2d 601 ).
We agree with the Family Court's determination to admit into evidence four Oral Transmittal Reports in connection with the child abuse proceeding against the father on behalf of Ariana M. for the limited purpose of establishing Ariana M.'s out-of-court statements (see Family Ct. Act § 1046[a][vi] ). Moreover, although the court should not have admitted a copy of the related criminal court complaint and a criminal court temporary order of protection, the admission of these documents constituted harmless error (see Matter of Stephanie R. , 21 A.D.3d 417, 799 N.Y.S.2d 804 ; Matter of Hughes v. Sivertsen , 275 A.D.2d 414, 712 N.Y.S.2d 613 ).
The father's contention that the Family Court should have given him oral and written notice pursuant to Family Court Act § 1052(c) is without merit. Pursuant to Family Court Act § 1052(c), a party adjudicated to have committed sexual abuse pursuant to Family Court Act § 1012(e)(i) or under the felony sex offender sections of the penal law are entitled to oral and written notice of the penalty attendant to any subsequent felony sex offender adjudication. The father, however, was determined to have sexually abused Ariana M. pursuant to Family Court Act § 1012(e)(iii), and thus no such notice was required.
Finally, the father's appeal from that portion of the order of disposition dated March 9, 2018, which directed him to comply with a final order of protection issued in favor of Ariana M. must be dismissed as academic. The order of protection has expired by its own terms and imposes no enduring consequences to the father (see Matter of Shanee R. [Young] , 173 A.D.3d 1187, 101 N.Y.S.3d 620 ; Matter of Hannah T.R. [Soya R.] , 149 A.D.3d 957, 52 N.Y.S.3d 406 ; Matter of Hannah T.R. [Soya R.] , 145 A.D.3d 1012, 42 N.Y.S.3d 850 ).
SCHEINKMAN, P.J., MASTRO, LEVENTHAL and MALTESE, JJ., concur.