Opinion
2013-10881, 2013-10883, 2013-10884 (Docket Nos. N-5992-11, N-5993-11, N-5994-11)
07-08-2015
In the Matter of KAYLA F. (Anonymous). Administration for Children's Services, respondent; Kevin F. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Keandre F. (Anonymous). Administration for Children's Services, respondent; Kevin F. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Kaniel F. (Anonymous). Administration for Children's Services, respondent; Kevin F. (Anonymous), appellant. (Proceeding No. 3).
Michael D. Carlin, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Tahirih M. Sadrieh of counsel), for Administration for Children's Services. Catherine S. Bridge, Staten Island, N.Y., attorney for the child Kayla F. Edward E. Caesar, Brooklyn, N.Y., attorney for the child Keandre F. Richard Cardinale, Brooklyn, N.Y., attorney for the child Kaniel F.
Michael D. Carlin, Brooklyn, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Tahirih M. Sadrieh of counsel), for Administration for Children's Services.
Catherine S. Bridge, Staten Island, N.Y., attorney for the child Kayla F.
Edward E. Caesar, Brooklyn, N.Y., attorney for the child Keandre F.
Richard Cardinale, Brooklyn, N.Y., attorney for the child Kaniel F.
JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
Opinion Appeals from (1) an order of fact-finding of the Family Court, Kings County (Stewart H. Weinstein, J.), dated March 12, 2013, (2) an order of protection of that court (Steven Z. Mostofsky, J.) dated May 22, 2013, and (3) an order of disposition of that court (Steven Z. Mostofsky, J.), dated May 23, 2013. The order of fact-finding, after a hearing, found that the father neglected the subject children. The order of protection directed the father, inter alia, to stay away from the subject children until and including May 22, 2014. The order of disposition, among other things, released the children Kayla F. and Keandre F. to the custody of the mother.
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order was superseded by the order of disposition, and is brought up for review on the appeal from the order of disposition; and it is further,ORDERED that the appeal from the order of protection is dismissed as academic, without costs or disbursements; and it is further,ORDERED that the order of disposition is affirmed, without costs or disbursements.
The order of protection expired by its own terms on May 22, 2014, and the determination of the appeal from this order of protection would, under the facts of this case, have no direct effect upon the parties (see Matter of Melody H. [Dwayne H.], 121 A.D.3d 686, 687, 993 N.Y.S.2d 340 ). Accordingly, the appeal from the order of protection must be dismissed as academic.
At a fact-finding hearing in a neglect proceeding pursuant to Family Court Act article 10, the burden is on the petitioner to prove, by a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ), “first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; see Matter of Jada F. [Carolyn F.], 97 A.D.3d 575, 947 N.Y.S.2d 595 ). A finding of neglect may be based on exposure to domestic violence (see Matter of Jada F. [Carolyn F.], 97 A.D.3d 575, 947 N.Y.S.2d 595 ; Matter of Deandre T., 253 A.D.2d 497, 498, 676 N.Y.S.2d 666 ), but only “where a preponderance of the evidence establishes that the child's physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent's commission of an act, or acts, of domestic violence in the child's presence” (Matter of Jada F. [Carolyn F.], 97 A.D.3d at 576, 947 N.Y.S.2d 595 ; see Matter of Kiara C. [David C.], 85 A.D.3d 1025, 1026, 926 N.Y.S.2d 566 ; Matter of Elijah J. [Phillip J.], 77 A.D.3d 835, 909 N.Y.S.2d 375 ; Matter of Todd D., 9 A.D.3d 462, 463, 780 N.Y.S.2d 180 ).
The credibility determination of the hearing court, which saw and heard the witnesses, is accorded great deference (see Matter of David M. [Sonia M.–C.], 119 A.D.3d 800, 800, 989 N.Y.S.2d 511 ; Matter of Mylasia P. [Brenda P.], 104 A.D.3d 856, 961 N.Y.S.2d 531 ). Here, the Family Court's determination finding the mother and the subject child who testified to be credible witnesses is supported by the record and will not be disturbed (see Matter of Tayleese M.C. [Tunisha H.], 127 A.D.3d 1077, 7 N.Y.S.3d 464 ; Matter of Dean J.K. [Joseph D.K.], 121 A.D.3d 896, 994 N.Y.S.2d 391 ; Matter of Christiana C. [Carleton C.], 86 A.D.3d 606, 607, 928 N.Y.S.2d 50 ; Matter of Taylor T. [Darren T.], 73 A.D.3d 1075, 902 N.Y.S.2d 122 ).
Moreover, contrary to the father's contention, a preponderance of the credible evidence at the hearing established that he neglected the subject children by, inter alia, engaging in certain acts of domestic violence in the children's presence that impaired, or created an imminent danger of impairing, their physical, mental, or emotional condition (see Matter of Briana A.–C., 125 A.D.3d 771, 4 N.Y.S.3d 95 ; Matter of David M. [Sonia M.–C.], 119 A.D.3d at 800–801, 989 N.Y.S.2d 511 ; Matter of Amelia V.M.B. [Davidson B.], 107 A.D.3d 980, 968 N.Y.S.2d 157 ; Matter of Kristina Mc. [Robert Mc.], 101 A.D.3d 882, 954 N.Y.S.2d 908 ; Matter of Jada F. [Carolyn F.], 97 A.D.3d at 576, 947 N.Y.S.2d 595 ; Matter of Kiara C. [David C.], 85 A.D.3d at 1026, 926 N.Y.S.2d 566 ; Matter of Deandre T., 253 A.D.2d at 498, 676 N.Y.S.2d 666 ).
The Family Court providently exercised its discretion in denying the father's request for a continuance to allow the testimony of his cousin and to allow his attorney to review certain subpoenaed City of New York Department of Education (hereinafter DOE) records. The father subpoenaed the DOE records after the neglect proceedings had been pending for nearly two years and only a few weeks before he requested a continuance, and he did not make an offer of proof as to the cousin's testimony or the DOE records (see Black v. St. Luke's Cornwall Hosp., 112 A.D.3d 661, 661, 976 N.Y.S.2d 562 ; cf. Verdi v. Ho, 71 A.D.3d 1004, 1005, 897 N.Y.S.2d 235 ).
The father's remaining contentions are without merit (see Matter of Jackson F. [Gabriel F.], 121 A.D.3d 1114, 995 N.Y.S.2d 190 ; Matter of Devante S. [John H.], 51 A.D.3d 482, 857 N.Y.S.2d 141 ; Matter of Stephanie R. [Orlando G.], 21 A.D.3d 417, 799 N.Y.S.2d 804 ).