Opinion
349 CAF 16–01836
03-23-2018
In the MATTER OF ALIYAH M. Erie County Department of Social Services, Petitioner–Respondent; v. Lynnise M., Respondent–Appellant, and Anthony A., Respondent. (Appeal No. 1.)
DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR RESPONDENT–APPELLANT. NATALIE M. STUTZ, BUFFALO, FOR PETITIONER–RESPONDENT. AYOKA A. TUCKER, BUFFALO, ATTORNEY FOR THE CHILD.
DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR RESPONDENT–APPELLANT.
NATALIE M. STUTZ, BUFFALO, FOR PETITIONER–RESPONDENT.
AYOKA A. TUCKER, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from seven orders that adjudged that the subject children were abused children and placed the mother under petitioner's supervision. We conclude at the outset that the appeal from the order in appeal No. 2 must be dismissed. The record reflects that Family Court vacated the order at issue in that appeal because the subject child had turned 18 prior to the conclusion of the proceedings (see Matter of Alissia E.C. [Angelo B.], 104 A.D.3d 1269, 1269, 960 N.Y.S.2d 923 [4th Dept. 2013] ).
With respect to the remaining appeals, we reject the mother's contention that the court improperly relied on inadmissible hearsay in reaching its determination. Initially, the court acknowledged that the out-of-court statements attributed by witnesses to the mother's adult daughter constituted hearsay, but expressly stated in its decision that it had not considered those statements for the truth of the matter asserted therein (see Matter of Weekley v. Weekley, 109 A.D.3d 1177, 1178, 972 N.Y.S.2d 376 [4th Dept. 2013] ). Further, the out-of-court statements attributed to the child who allegedly was sexually abused by the mother's boyfriend were sufficiently corroborated under Family Court Act § 1046(a)(vi) and therefore were properly considered by the court (see Matter of Nicole V., 71 N.Y.2d 112, 118–119, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ).
We further conclude that, contrary to the mother's contention, the court did not abuse its discretion in qualifying a witness for petitioner as an expert "in his capacity as a mental health counselor as well as ... [based on] his expertise in the skill of forensic mental health as it pertains to sexual abuse" (see generally Matter of Pringle v. Pringle, 296 A.D.2d 828, 829, 744 N.Y.S.2d 784 [4th Dept. 2002] ). The court properly considered the witness's history of " ‘[l]ong observation and actual experience’ " in addition to his academic credentials ( Price v. New York City Hous. Auth., 92 N.Y.2d 553, 559, 684 N.Y.S.2d 143, 706 N.E.2d 1167 [1998] ).
Finally, the mother's remaining contentions are improperly raised for the first time on appeal and therefore are not preserved for our review (see Matter of Jaydalee P. [Codilee R.], 156 A.D.3d 1477, 1477, 67 N.Y.S.3d 371 [4th Dept. 2017] ; see generally Earsing v. Nelson, 212 A.D.2d 66, 72, 629 N.Y.S.2d 563 [4th Dept. 1995] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.