Opinion
2013-11-6
In the Matter of EUNICE D. (Anonymous). Administration for Children's Services, respondent; James F. D. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Elijah D. (Anonymous). Administration for Children's Services, respondent; James F. D. (Anonymous), appellant. (Proceeding No. 2)
Austin I. Idehen, Jamaica, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Moon Choi of counsel), for respondent.
Austin I. Idehen, Jamaica, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Moon Choi of counsel), for respondent.
Steven Banks, New York, N.Y. (Tamara A. Steckler and Susan Clement of counsel), attorney for the child Eunice D.
Seymour Zager, White Plains, N.Y., attorney for the child Elijah D.
MARK C. DILLON, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In two related neglect proceedings pursuant to Family Court Act article 10, James F.D. appeals from (1) an order of fact-finding of the Family Court, Queens County (Richroath, J.), dated January 31, 2012, which found that he had neglected the child Eunice D., and had derivatively neglected the child Elijah D., and (2) an order of disposition of the same court dated May 22, 2012, which, upon the order of fact-finding, and after a dispositional hearing, inter alia, released the subject children, upon consent, to the custody of the nonrespondent mother with supervision by the Administration for Children's Services until August 28, 2012.
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appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of disposition, and is brought up for review on the appeal from the order of disposition; and it is further,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 appeal from so much of the order of disposition as released the subject children, upon consent, to the custody of the mother under the supervision of the Administration for Children's Services until August 28, 2012, is dismissed, without costs or disbursements; and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
The appeal from so much of the order of disposition as released the subject children, upon consent, to the custody of the nonrespondent mother under the supervision of the Administration for Children's Services until August 28, 2012, must be dismissed, as no appeal lies from an order entered upon the consent of the appealing party ( see Matter of Brian R., 48 A.D.3d 576, 577, 852 N.Y.S.2d 235). In any event, that portion of the order of disposition has been rendered academic, as it has expired by its own terms ( see Matter of Sarah A. [ Daniel A.], 109 A.D.3d 467, 970 N.Y.S.2d 273; Matter of Brian R., 48 A.D.3d at 577, 852 N.Y.S.2d 235). Nevertheless, the Family Court's findings of neglect against the appellant are not academic, “since an adjudication of neglect and/or derivative neglect constitutes ‘a permanent and significant stigma which might indirectly affect the appellant's status in future proceedings' ” ( Matter of Najad D. [ Kiswana M.], 99 A.D.3d 707, 708, 951 N.Y.S.2d 747 quoting Matter of Ifeiye O., 53 A.D.3d 501, 501, 861 N.Y.S.2d 133; see Matter of Brian R., 48 A.D.3d at 577, 852 N.Y.S.2d 235). Here, the Family Court's findings of fact are supported by a preponderance of the credible evidence ( see Matter of Najad D. [ Kiswana M.], 99 A.D.3d at 708, 951 N.Y.S.2d 747; Matter of Iouke H. [ Terrence H.], 94 A.D.3d 889, 891, 941 N.Y.S.2d 851; Matter of James S. [ Kathleen S.], 88 A.D.3d 1006, 931 N.Y.S.2d 524; Matter of Yanni D. [ Hope J.], 95 A.D.3d 1313, 944 N.Y.S.2d 923; Matter of Brian R., 48 A.D.3d at 577, 852 N.Y.S.2d 235).
The appellant's claim that the Family Court should have dismissed the petitions pursuant to Family Court Act § 1051(c) is raised for the first time on appeal and, therefore, is not properly before this Court.