Opinion
2018–10230 2018–10231 Docket Nos. N–24829–16, N–24830–16, N–24831–16
10-30-2019
In the MATTER OF ADEBAYO J. (Anonymous). Administration for Children's Services, Petitioner-Respondent; v. Eniola J. (Anonymous), Appellant, et al., Respondent. (Proceeding No. 1) In the Matter of Adesola J. (Anonymous). Administration for Children's Services, Petitioner-Respondent; v. Eniola J. (Anonymous), Appellant, et al., Respondent. (Proceeding No. 2) In the Matter of Oluwaferanmi J. (Anonymous). Administration for Children's Services, Petitioner-Respondent; v. Eniola J. (Anonymous), Appellant, et al., Respondent. (Proceeding No. 3)
Daniel E. Lubetsky, Jamaica, NY, for appellant. Georgia M. Pestana, Acting Corporation Counsel, New York, N.Y. (Jane L. Gordon and Carolyn Walther of counsel), for petitioner-respondent. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Marcia Egger of counsel), attorney for the children.
Daniel E. Lubetsky, Jamaica, NY, for appellant.
Georgia M. Pestana, Acting Corporation Counsel, New York, N.Y. (Jane L. Gordon and Carolyn Walther of counsel), for petitioner-respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Marcia Egger of counsel), attorney for the children.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In related proceedings pursuant to Family Court Act article 10, the mother appeals from (1) an order of fact-finding of the Family Court, Queens County (Mildred T. Negron, J.), dated March 27, 2018, and (2) an order of disposition of the same court (Joan L. Piccirillo, J.), dated July 30, 2018. The order of fact-finding, insofar as appealed from, after a fact-finding hearing, found that the mother abused the child Adebayo J. and derivatively abused the children Adesola J. and Oluwaferanmi J. The order of disposition, insofar as appealed from, after a dispositional hearing, placed the subject children in the custody of the Commissioner of Social Services of the City of New York until the completion of the next permanency hearing and directed the mother to comply with the reasonable referrals and supervision of the Administration for Children's Services.
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the portions of the order of fact-finding appealed from were superseded by the order of disposition and are brought up for review on the appeal from the order of disposition; and it is further,
ORDERED that the appeal from so much of the order of disposition as placed the subject children in the custody of the Commissioner of Social Services of the City of New York until the completion of the next permanency hearing 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.
Following a fact-finding hearing, the Family Court found, inter alia, by a preponderance of the evidence, that the mother abused the child Adebayo J. and derivatively abused the children Adesola J. and Oluwaferanmi J. The mother appeals.
The appeal from so much of the order of disposition as placed the children in the custody of the Commissioner of Social Services of the City of New York until the completion of the next permanency hearing has been rendered academic, as it has expired by its own terms (see Matter of Brianna M. [Corbert G.], 152 A.D.3d 600, 601, 58 N.Y.S.3d 534 ; Matter of Tarelle J. [Walter J.], 152 A.D.3d 593, 594, 58 N.Y.S.3d 539 ). However, since an adjudication of abuse or neglect constitutes a permanent and significant stigma that might indirectly affect the mother's status in future proceedings, the appeal from so much of the order of disposition as brings up for review the findings of abuse and derivative abuse, as set forth in the order of fact-finding, has not been rendered academic (see Matter of Linda F. [Jose F.], 119 A.D.3d 944, 945, 989 N.Y.S.2d 864 ).
"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" ( Matter of Brianna M. [Corbert G.], 152 A.D.3d at 601, 58 N.Y.S.3d 534 ; see Matter of David B. [Stacy T.], 171 A.D.3d 1041, 1042, 98 N.Y.S.3d 643 ; Matter of Antonio T. [Franklin T.], 169 A.D.3d 699, 700, 93 N.Y.S.3d 369 ; Matter of Elisa V. [Hung V.], 159 A.D.3d 827, 828, 71 N.Y.S.3d 626 ; Matter of Tarelle J. [Walter J.], 152 A.D.3d at 594, 58 N.Y.S.3d 539 ). "Great deference is given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear the testimony, and observe their demeanor" ( Matter of Oliver A. [Ogius A.-D.], 167 A.D.3d 867, 868, 90 N.Y.S.3d 142 ; see Matter of Antonio T. [Franklin T.], 169 A.D.3d at 700, 93 N.Y.S.3d 369 ; Matter of Brianna M. [Corbert G.], 152 A.D.3d at 601, 58 N.Y.S.3d 534 ).
Here, the petitioner demonstrated by a preponderance of the evidence that the mother abused Adebayo J., as Adebayo J's out-of-court statements were corroborated by the out-of-court statements of Adesola J., as well as Adebayo J.'s medical records (see Matter of David B. [Stacy T.], 171 A.D.3d at 1042, 98 N.Y.S.3d 643 ; Matter of Brianna M. [Corbert G.], 152 A.D.3d at 602, 58 N.Y.S.3d 534 ; Matter of Tarelle J. [Walter J.], 152 A.D.3d at 594, 58 N.Y.S.3d 539 ). Furthermore, the Family Court's credibility determinations are supported by the record and will not be disturbed on appeal.
Moreover, a derivative finding of abuse as to Adesola J. and Oluwaferanmi J. was warranted, as the evidence demonstrated such an impaired level of parental judgment as to create a substantial risk of harm for any child in the mother's care (see Matter of Antonio T. [Franklin T.], 169 A.D.3d at 700, 93 N.Y.S.3d 369 ; Matter of Eliora B. [Kennedy B.], 146 A.D.3d 772, 773–774, 45 N.Y.S.3d 144 ).
MASTRO, J.P., LEVENTHAL, IANNACCI and CHRISTOPHER, JJ., concur.