| Matter of Alaysha M. (Agustin M.) |
| 2011 NY Slip Op 08045 [89 AD3d 1467] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Alaysha M. and Others, Infants. Chautauqua CountyDepartment of Social Services, Respondent; Agustin M., Appellant. |
—[*1] Barbara L. Widrig, Mayville, for petitioner-respondent. Richard L. Sotir, Jr., Attorney for the Children, Jamestown, for Alaysha M., Chloe M., Dajuan M.,Elijah M. and Kaylia M.
Appeal from an order of the Family Court, Chautauqua County (Judith S. Claire, J.), entered July15, 2010 in a proceeding pursuant to Family Court Act article 10. The order, among other things,adjudged that respondent had abused the subject children.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent fathercontends that Family Court erred in finding that he derivatively abused the children who are the subjectof this proceeding, based on the finding that he had severely abused one of his other children, resultingin the child's death. We note at the outset that the father improperly appealed from an order dispensingwith the requirement that reasonable efforts be made to reunite the father with the subject childrenrather than from the correct subsequent order of fact-finding and disposition. Nevertheless, we exerciseour discretion to treat the notice of appeal as valid and deem the appeal as properly taken from thesubsequent order (see CPLR 5520 [c]; Matter of Morgan P., 60 AD3d 1362 [2009]).
Contrary to the father's contention, the finding of derivative abuse is appropriate in view of thenature and severity of the abuse of the child who died (see Family Ct Act § 1046 [a] [i];Matter of Marino S., 100 NY2d 361, 373-374 [2003], cert denied 540 US 1059[2003]; Matter of Keara MM. [NaomiMM.], 84 AD3d 1442, 1444 [2011]; Matter of Nicole H., 12 AD3d 182, 183 [2004]). Inasmuch as thefather has surrendered his parental rights with respect to the subject children, his further contention thatthe court erred in granting petitioner's motion seeking a finding pursuant to Family Court Act §1039-b (a) that it is no longer required to make reasonable efforts to reunite the subject children withthe father is now moot (see Matter of RandiNN. [Randi MM.—Joseph MM.], 80 AD3d 1086, 1087 [2011], lv denied16 NY3d 712 [2011]; see also Matter ofJaime S., 32 AD3d 1198 [2006]). The exception to the mootness doctrine does not applyunder these circumstances (see Randi NN., 80 AD3d at 1087; Matter of Simeon F.,58 [*2]AD3d 1081, 1081-1082 [2009], lv denied 12 NY3d709 [2009]). We have reviewed the father's remaining contentions and conclude that none warrantsreversal. Present—Centra, J.P., Fahey, Peradotto, Green and Gorski, JJ.