| Matter of Vivian OO. |
| 2007 NY Slip Op 07779 [44 AD3d 1104] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Vivian OO. and Another, Children Alleged to beAbused and/or Neglected. Tompkins County Department of Social Services, Respondent; JamesOO., Appellant. |
—[*1] Betsy Stevens, Tompkins County Department of Social Services, Ithaca, for respondent. Erin E. McKinley, Law Guardian, Ithaca.
Rose, J. Appeal from an order of the Family Court of Tompkins County (Rowley, J.), enteredNovember 17, 2005, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to adjudicate respondent's children to be abused and/or neglected.
Respondent is the biological father of three children, James U. (born in 2002), Vivian OO.(born in 2001), and Brandon OO. (born in 1999). In January 2002, Family Court terminated thefather's parental rights with respect to Brandon in an order that was affirmed by this Court(Matter of Brandon OO., 302 AD2d 807 [2003]). Thereafter, Vivian was removed fromthe father's home and, in March 2004, petitioner commenced this proceeding alleging the father'ssexual abuse and neglect of Vivian during his visitation with her, and his derivative neglect ofJames. After a fact-finding hearing, Family Court found that Vivian had been sexually abusedwhile in the father's care and James had been derivatively neglected. The court granted thepetition and this appeal ensued.[*2]
Inasmuch as the father's parental rights as to Vivian wereterminated on November 3, 2005 and his appeal from that determination was unsuccessful (Matter of Vivian OO., 33 AD3d1096 [2006]), his current appeal from Family Court's later order as to Vivian, which grantedthe earlier neglect and abuse petition and extended her placement in foster care, is moot (see Matter of Vivian OO., 34 AD3d1084, 1084-1085 [2006]; Matter of Raychael L.W., 298 AD2d 829 [2002], lvdenied 99 NY2d 504 [2002]; Matter of Gerrod BB., 284 AD2d 584, 585 n [2001]).Significantly, the father does not argue that any exception to the mootness doctrine is applicablehere (see Matter of Vivian OO., 34 AD3d at 1085; Matter of Norbert YY., 28 AD3d 815, 816 [2006]).
The father, however, also contends that Family Court's finding of derivative neglect of Jameswas against the weight of the evidence because he was not proven to have abused and neglectedVivian. Since this challenge is not moot because his parental rights have not been terminated asto James, we have reviewed the record and find no basis to disturb Family Court's determinationto credit the testimony of petitioner's experts as to the nature and causes of the injuries sustainedby Vivian (see Matter of Seamus K.,33 AD3d 1030, 1033 [2006]; Matter of Amanda M., 28 AD3d 813, 814 [2006]; Matter of Rebecca X., 18 AD3d896, 898 [2005], lv denied 5 NY3d 707 [2005]). Since the father's neglect and abuseof Vivian was proven, and the determination to terminate his parental rights confirmed his failureto correct the conditions that led to her removal (Matter of Vivian OO., 33 AD3d at1097), Family Court's findings of an impaired level of parental judgment and derivative neglectas to James are supported by the evidence (see Matter of Michael WW., 20 AD3d 609, 611 [2005]; Matter of Sabrina M., 6 AD3d759, 761 [2004]).
Cardona, P.J., Crew III, Mugglin and Lahtinen, JJ., concur. Ordered that the order isaffirmed, without costs.