Opinion
2015-05-20
In the Matter of KYRA S. (Anonymous). Administration for Children's Services, respondent; Kirtan D.S. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Joshua S. (Anonymous). Administration for Children's Services, respondent; Kirtan D.S. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Ja'dore S. (Anonymous). Administration for Children's Services, respondent; Kirtan D.S. (Anonymous), appellant. (Proceeding No. 3) In the Matter of Jaaia S. (Anonymous). Administration for Children's Services, respondent; Kirtan D.S. (Anonymous), appellant. (Proceeding No. 4).
Christine Gottlieb, New York, N.Y. and Jessica Marcus, Brooklyn, N.Y., for appellant (one brief filed). Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Julie Steiner of counsel), for respondent.
Christine Gottlieb, New York, N.Y. and Jessica Marcus, Brooklyn, N.Y., for appellant (one brief filed). Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Julie Steiner of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Jess Rao of counsel), attorney for the children.
RANDALL T. ENG, P.J., L. PRISCILLA HALL, JEFFREY A. COHEN, and BETSY BARROS, JJ.
Appeals from (1) an order of fact-finding of the Family Court, Kings County (Alan Beckoff, J.), dated April 19, 2013, and (2) an order of disposition of that court dated November 25, 2013. The order of fact-finding, after a hearing, found that the father sexually abused the subject children. The order of disposition, after a hearing, inter alia, released the children to the custody of the mother with supervision by the Administration for Children's Services for a period of 12 months.
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appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of disposition, and is brought up for review on the appeal from the order of disposition; and it is further,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 to the custody of the mother with supervision by the Administration for Children's Services for a period of 12 months is dismissed as academic,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 children to the custody of the mother with supervision by the Administration for Children's Services for a period of 12 months must be dismissed as academic, as that portion of the order has already expired ( see Matter of Linda F. [Jose F.], 119 A.D.3d 944, 945, 989 N.Y.S.2d 864; Matter of Joshua P. [David J.], 111 A.D.3d 836, 837, 975 N.Y.S.2d 440). However, since an adjudication of abuse or neglect “constitutes a permanent and significant stigma that might indirectly affect the appellant's status in future proceedings,” the appeal from so much of the order of disposition as brings up for review the finding of abuse, as set forth in the order of fact-finding dated April 19, 2013, has not been rendered academic (Matter of Joshua P. [David J.], 111 A.D.3d at 837, 975 N.Y.S.2d 440 [internal quotation marks omitted]; see Matter of Linda F. [Jose F.], 119 A.D.3d at 945, 989 N.Y.S.2d 864).
“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” ( Matter of Amber C. [Miguel C.], 104 A.D.3d 845, 846, 961 N.Y.S.2d 492; seeFamily Ct. Act § 1046[b][i]; Matter of Adelia V. [Braun], 91 A.D.3d 659, 661, 937 N.Y.S.2d 78). The Family Court's assessment of the credibility of witnesses is entitled to considerable deference ( see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337; Matter of Joseph O'D. [Denise O'D.], 102 A.D.3d 874, 875, 958 N.Y.S.2d 731; Matter of Yanni D. [Hope J.], 95 A.D.3d 1313, 944 N.Y.S.2d 923; Matter of Sadiq H. [Karl H.], 81 A.D.3d 647, 915 N.Y.S.2d 867). Here, contrary to the father's contention, the evidence adduced at the fact-finding hearing was sufficient to prove, by a preponderance of the evidence, that he sexually abused the subject children ( seeFamily Ct. Act §§ 1012[e][iii]; 1046[b] [i]; Penal Law § 130.60; Matter of Laura C. [Eduardo C.], 108 A.D.3d 666, 969 N.Y.S.2d 164; Matter of Karen Patricia G., 44 A.D.3d 658, 660, 843 N.Y.S.2d 360; Matter of Latifah C., 34 A.D.3d 798, 799, 826 N.Y.S.2d 333).
The father's remaining contentions are either unpreserved for appellate review or without merit.