Opinion
Nos. 2021-04146 2021-04147 Docket Nos. N-26425-16 N-29426-16
09-28-2022
In the Matter of Anthony M.-B. (Anonymous). Administration for Children's Services, respondent; Anthony B. (Anonymous), appellant. (Proceeding No. 1.) In the Matter of Ariana M.-B. (Anonymous). Administration for Children's Services, respondent; Anthony B. (Anonymous), appellant. (Proceeding No. 2.)
Rhea G. Friedman, New York, NY, for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (MacKenzie Fillow and Rebecca L. Visgaitis of counsel), for respondent. Twyla Carter, New York, NY (Dawne A. Mitchell and Judith Stern of counsel), attorney for the children.
Rhea G. Friedman, New York, NY, for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (MacKenzie Fillow and Rebecca L. Visgaitis of counsel), for respondent.
Twyla Carter, New York, NY (Dawne A. Mitchell and Judith Stern of counsel), attorney for the children.
ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 10, the father appeals from (1) an order of fact-finding of the Family Court, Kings County (Jacqueline D. Williams, J.), dated January 27, 2020, and (2) an order of disposition of the same court dated May 19, 2021. The order of fact-finding, after a fact-finding hearing, found that the father sexually abused the child Ariana M.-B., derivatively abused the child Anthony M.-B., and neglected both of the children. The order of disposition, upon the order of fact-finding and after a dispositional hearing, inter alia, released the subject children to the custody of the nonrespondent mother.
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further, ORDERED that the order of disposition is affirmed, without costs or disbursements.
In November 2016, the petitioner, the Administration for Children's Services (hereinafter ACS), commenced these related proceedings pursuant to Family Court Act article 10. Following a fact-finding hearing, the Family Court determined that the father sexually abused Ariana M.-B., derivatively abused Anthony M.-B., and neglected both of the children. In an order of disposition dated May 19, 2021, the court, inter alia, released the subject children to the custody of the nonrespondent mother. 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 id. § 1046[b][i]; Matter of Tammie Z., 66 N.Y.2d 1, 3; Matter of Mariliz G. [Jamie G.], 207 A.D.3d 627; Matter of Antonio T. [Franklin T.], 169 A.D.3d 699, 700). The Family Court's findings with respect to credibility are entitled to great weight on appeal (see Matter of Brianna M. [Corbert G.], 152 A.D.3d 600, 601; Matter of Desiree P. [Michael H.], 149 A.D.3d 841).
Here, ACS demonstrated by a preponderance of the evidence that the father sexually abused Ariana M.-B. (see Family Ct Act § 1012[e][iii]; Matter of Taurice M. [Gregory A.], 147 A.D.3d 844, 844-845). Ariana M.-B.'s out-of-court statements were sufficiently corroborated by the mother's testimony confirming certain events (see Matter of Nicole V., 71 N.Y.2d 112, 118; Matter of Jolieanna G. [Jennifer G.], 202 A.D.3d 622, 623; Matter of Antonio T. [Franklin T.], 169 A.D.3d at 700). Moreover, a derivative finding of abuse as to Anthony M.-B. 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 father's care (see Matter of Marino S., 100 N.Y.2d 361, 374; Matter of Vered L. [Yoshi S.], 205 A.D.3d 1028, 1030; Matter of Antonio T. [Franklin T.], 169 A.D.3d at 700).
Contrary to the father's contention, a preponderance of the admissible evidence also supported a finding that the children's physical, mental, or emotional conditions were impaired or in imminent danger of impairment by the father's commission of an act of domestic violence against the mother in the presence of the children (see Matter of Silveris P. [Meuris P.], 198 A.D.3d 787, 789; Matter of Nina P. [Giga P.], 180 A.D.3d 1047, 1048; Matter of Cristalyn G. [Elvis S.], 158 A.D.3d 563, 564).
The father's remaining contentions are either unpreserved for appellate review or without merit.
IANNACCI, J.P., RIVERA, ZAYAS and DOWLING, JJ., concur.