| Matter of Kennedie M. (Kimberly M.) |
| 2011 NY Slip Op 08431 [89 AD3d 1544] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Kennedie M. and Another, Infants. Erie CountyDepartment of Social Services, Respondent; Douglas M., Appellant, et al., Respondent. Charles D.Halvorsen, Esq., Attorney for the Children, Appellant. |
—[*1] William D. Broderick, Jr., Elma, for respondent-appellant. Joseph T. Jarzembek, Buffalo, for petitioner-respondent.
Appeals from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered June29, 2010 in a proceeding pursuant to Family Court Act article 10. The order, inter alia, adjudged thatrespondent Douglas M. neglected the subject children.
It is hereby ordered that the appeal by Charles D. Halvorsen, Esq., Attorney for the Children, isunanimously dismissed and the order is otherwise affirmed without costs.
Memorandum: Respondent father and the Attorney for the Children appeal from an order offact-finding and disposition that, upon a finding that the father neglected his two children, placed thefather and the children under the supervision of petitioner for a period of one year. Contrary to thefather's contention, "the finding of neglect is supported by a preponderance of the evidence" (Matter of Merrick T., 55 AD3d 1318,1318 [2008]). Petitioner presented one witness, and Family Court found that witness credible. It is wellestablished that "the court's credibility determinations are . . . entitled to great deference"(Matter of Syira W. [Latasha B.], 78AD3d 1552, 1553 [2010]; see Merrick T., 55 AD3d 1318). Moreover, the courtproperly drew "the strongest possible negative inference" against the father after he failed to testify atthe fact-finding hearing (Matter of JasmineA., 18 AD3d 546, 548 [2005]; see Matter of Jenny N., 262 AD2d 951 [1999]).
The father's adult stepdaughter was the sole witness for petitioner, and she testified that the fathersexually abused her for a period of years beginning when she was 15. That testimony "supports thefinding of derivative neglect with respect to [the subject children inasmuch as] the impaired level ofparental judgment . . . shown by [the father's] behavior created a substantial risk to [thosechildren]" (Matter of Peter C., 278 AD2d 911, 911 [2000] [internal quotation marks omitted];see Matter of Devre S. [Carlee C.], 74AD3d 1848 [2010]; Matter of JovonJ., 51 AD3d 1395 [2008]). Contrary [*2]to the father'scontention, the court may make a finding of derivative neglect even if the child who was sexually abusedis not a subject of the neglect petition (seeMatter of Kole HH., 61 AD3d 1049, 1052-1053 [2009], lv dismissed 12 NY3d898 [2009]).
In any event, we further conclude that the finding of neglect is supported by the stepdaughter'stestimony that the father engaged in acts of domestic violence and that such acts occasionally occurredin the presence of the subject children (seeMatter of Aliyah B. [Denise J.], 87 AD3d 943 [2011]; Matter of Christiana C. [Carleton C.], 86 AD3d 606, 607[2011];Matter of Syira W., 78 AD3d 1552 [2010]). We see no need to address the father'sremaining challenge to the sufficiency of the evidence.
The father failed to preserve for our review his further contention that the court erred in permittingthe stepdaughter's attorney to participate in the fact-finding hearing (see generally Family CtAct § 164; CPLR 5501 [a] [3]; Matter of Diamond K., 31 AD3d 553 [2006]). The father also failed topreserve for our review his contention that the court erred in taking judicial notice of a family offensepetition filed against the father (see Matter ofDamian M., 41 AD3d 600 [2007]). We reject the father's further contention that the courterred in admitting in evidence his substance abuse treatment records. The court providently exercisedits discretion in ordering the disclosure of those records inasmuch "as those records were clearlyrelevant to its determination [on the issue of neglect]. The . . . [c]ourt's finding of goodcause is supported by the record" (Matter of Marlene D., 285 AD2d 462, 463 [2001], lvdenied 97 NY2d 605 [2001]; see 42 USC § 290dd-2 [b] [2] [C]; 42 CFR 2.64[d]).
The Attorney for the Children contends only that the court should have ordered the father to obtainsexual offender treatment. Inasmuch as that contention involves a challenge to the dispositional part ofthe order and the order has expired by its terms, we conclude that the appeal by the Attorney for theChildren must be dismissed as moot (seeMatter of Myisha B. [Darryl B.], 73 AD3d 625 [2010]; Matter of Chelsea M., 61 AD3d 1030, 1032 [2009]).Present—Scudder, P.J., Carni, Lindley, Sconiers and Green, JJ.