Opinion
2013-02-8
In the Matter of BRITTANY W., Stephaen W., Michael W., Kara W. and Justin W. Niagara County Department of Social Services, Petitioner–Respondent; Patrick W., Respondent–Appellant, and Karen W., Respondent.
Appeal from an order of the Family Court, Niagara County (John F. Batt, J.), entered February 16, 2012 in a proceeding pursuant to Family Court Act article 10. The order, among other things, found that respondent Patrick W. neglected two of his children and derivatively neglected three others. David J. Farrugia, Public Defender, Lockport (Mary–Jean Bowman of Counsel), for Respondent–Appellant. Laura Wagner, Lockport, for Petitioner–Respondent.
Appeal from an order of the Family Court, Niagara County (John F. Batt, J.), entered February 16, 2012 in a proceeding pursuant to Family Court Act article 10. The order, among other things, found that respondent Patrick W. neglected two of his children and derivatively neglected three others.
David J. Farrugia, Public Defender, Lockport (Mary–Jean Bowman of Counsel), for Respondent–Appellant. Laura Wagner, Lockport, for Petitioner–Respondent.
Deborah A. Walker–Dewitt, Attorney for the Children, Lockport, for Brittany W., Stephaen W., Michael W., Kara W. and Justin W.
MEMORANDUM:
Respondent father appeals from an order finding that he neglected his two children and derivatively neglected three others. Contrary to the father's contention, the out-of-court statements of his two children were sufficiently corroborated by their “cross statements,” the photographic evidence of their injuries, and the caseworker's testimony (Matter of Frank Y., 11 A.D.3d 740, 742, 783 N.Y.S.2d 123 [internal quotation marks omitted]; seeFamily Ct. Act § 1046[a][vi] ). “Moreover, [Family Court] properly drew ‘the strongest possible negative inference’ against the father after he failed to testify at the fact-finding hearing” (Matter of Kennedie M. [Douglas M.], 89 A.D.3d 1544, 1545, 934 N.Y.S.2d 278,lv. denied18 N.Y.3d 808, 942 N.Y.S.2d 35, 965 N.E.2d 262). We therefore conclude that the court's finding of neglect was justified on this record, as was its finding of derivative neglect with respect to the other three children ( see Matter of Steven L., 28 A.D.3d 1093, 1093, 813 N.Y.S.2d 627,lv. denied7 N.Y.3d 706, 819 N.Y.S.2d 873, 853 N.E.2d 244). We reject the father's further contention that the court improperly admitted testimony and other evidence regarding an order of protection that he contends was not in effect, inasmuch as the record does not substantiate his claim that the order at issue was not actually in effect. In any event, the evidence relating to that order of protection was not material to the court's ultimate finding of neglect, and any error in its admission is thus harmless ( see Matter of A.R., 309 A.D.2d 1153, 1153, 764 N.Y.S.2d 746;see also Matter of Shirley v. Shirley, 101 A.D.3d 1391, 1394, 956 N.Y.S.2d 304;Matter of Anjoulic J., 18 A.D.3d 984, 986–987, 794 N.Y.S.2d 709).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.