Opinion
2014-00055, Docket Nos. N-37675-09, N-37676-09.
04-22-2015
In the Matter of TAYLEESE M.C. (Anonymous). Administration for Children's Services, respondent; Tunisha H. (Anonymous), appellant. (Proceeding No. 1) In the Matter of T'mya A.C. (Anonymous). Administration for Children's Services, respondent; Tunisha H. (Anonymous), appellant. (Proceeding No. 2).
Anthony DeGuerre, Staten Island, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Deborah A. Brenner of counsel), for respondent. Karen P. Simmons, Brooklyn, N.Y. (Laura Solecki and Janet Neustaetter of counsel), attorney for the children.
Anthony DeGuerre, Staten Island, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Deborah A. Brenner of counsel), for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Laura Solecki and Janet Neustaetter of counsel), attorney for the children.
CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
Opinion Appeal from an order of disposition of the Family Court, Kings County (Alan Beckoff, J.), dated October 24, 2013. The order, inter alia, released the subject children to the custody of their father, with supervision. The appeal brings up for review an order of fact-finding of that court, dated May 9, 2011, which, after a hearing, found that the mother neglected the child T'mya A.C. and derivatively neglected the child Tayleese M. C.
ORDERED that the appeal from the order of disposition is dismissed, without costs or disbursements, except insofar as it brings up for review the order of fact-finding; and it is further,ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
The appeal from the order of disposition, except insofar as it brings up for review the order of fact-finding dated May 9, 2011, must be dismissed as academic, as the order of disposition has expired by its own terms (see Matter of Cheryale B. [Michelle B.], 121 A.D.3d 976, 976–977, 995 N.Y.S.2d 135 ; Matter of Kaleb B. [Harold S.], 119 A.D.3d 780, 780–781, 989 N.Y.S.2d 345 ; Matter of Ndeye D. [Benjamin D.], 85 A.D.3d 1026, 1027, 926 N.Y.S.2d 119 ; Matter of Alanie H. v. Alanie H., 83 A.D.3d 1066, 1067, 922 N.Y.S.2d 166 ). “However, since the adjudication of 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 findings of neglect and derivative neglect in the order of fact-finding is not academic (Matter of Ndeye D. [Benjamin D.], 85 A.D.3d at 1027, 926 N.Y.S.2d 119, quoting Matter of Daqwuan G., 29 A.D.3d 694, 695, 814 N.Y.S.2d 723 ; see Matter of Cheryale B. [Michelle B.], 121 A.D.3d at 977, 995 N.Y.S.2d 135 ).
“[A] party seeking to establish neglect must show, 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 ).
Here, a preponderance of the evidence supports the Family Court's determination that the mother neglected the child T'mya A.C. by using excessive corporal punishment and committing acts of domestic violence against the father while in the child's presence, which impaired, or created an imminent danger of impairing, the child's physical, mental, or emotional condition (see Matter of Dylan G. [Victor M.], 119 A.D.3d 786, 787, 989 N.Y.S.2d 321 ; Matter of Nurridin B. [Louis J.], 116 A.D.3d 770, 771–772, 982 N.Y.S.2d 910 ; Matter of Eugene S. [Priscilla E.], 114 A.D.3d 691, 691, 979 N.Y.S.2d 834 ; Matter of Michael G.C. [Michael C.], 103 A.D.3d 890, 891, 960 N.Y.S.2d 185 ).
The Family Court's determination that the father and T'mya testified credibly, whereas the mother's testimony lacked credibility, is entitled to considerable deference on appeal, and, on this record, there is no basis to disturb that determination (see Matter of Arique D. [Elizabeth A.], 111 A.D.3d 625, 627, 975 N.Y.S.2d 82 ; Matter of Candacy C. [Clairmonte C.], 96 A.D.3d 836, 836, 946 N.Y.S.2d 250 ; Matter of Christiana C. [Carleton C.], 86 A.D.3d 606, 607, 928 N.Y.S.2d 50 ; Matter of Isaiah S., 63 A.D.3d 948, 949, 880 N.Y.S.2d 528 ). In addition, the mother's contention that the Family Court improperly admitted testimony from T'mya without determining whether she was competent to testify under oath is unpreserved for appellate review. In any event, this contention is without merit, as the record is sufficient to establish that T'mya was capable of testifying as a sworn witness (see Matter of Robert F., 297 A.D.2d 610, 747 N.Y.S.2d 362 ).
The derivative finding of neglect as to the child Tayleese M.C. is also supported by the evidence (see Family Ct. Act § 1046[a][i] ; Matter of James S. [Kathleen
S.], 88 A.D.3d 1006, 1006–1007, 931 N.Y.S.2d 524 ; Matter of Astrid C., 43 A.D.3d 819, 821, 841 N.Y.S.2d 356 ; Matter of Cybill V., 279 A.D.2d 582, 583, 719 N.Y.S.2d 286 ; Matter of Deandre T., 253 A.D.2d 497, 498, 676 N.Y.S.2d 666 ).
The mother's remaining contentions are without merit.