| Matter of Brandon M. (Luis M.) |
| 2012 NY Slip Op 02758 [94 AD3d 520] |
| April 12, 2012 |
| Appellate Division, First Department |
| In the Matter of Brandon M. and Another, Infants. Luis M.,Appellant; Administration for Children's Services, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), forrespondent. Assigned Counsel for the Children, New York (Tennille M. Tatum-Evans of counsel),attorney for the children.
Appeal from order, Family Court, Bronx County (Karen Lupuloff, J.), entered on or aboutMarch 7, 2011, which directed respondent father to stay away from and not communicate withthe subject children, except for agency-supervised visits if requested by the children, until March6, 2012, unanimously dismissed, without costs, as moot.
Because the order of protection has expired, this appeal is moot (see Matter of Diallo v Diallo, 68 AD3d411 [2009], lv dismissed 14 NY3d 854 [2010]).
Contrary to respondent's contentions, the order of disposition is not properly before thisCourt since the notice of appeal makes no reference to that order and only attached the order ofprotection (see CPLR 5515 [1];Matter of Peter GG., 36 AD3d 1004, 1005 [2007]).
Were we to reach the merits, we would find that a preponderance of the evidence establishesthat respondent sexually abused his step granddaughter (Family Ct Act § 1012 [e] [iii];§ 1046 [b] [i]). The step granddaughter's out-of-court statements to the social worker andin medical records were admitted without objection in the joint proceedings against respondentand the girl's parents. These statements sufficiently corroborated the out-of-court statement ofone of the subject children that he saw respondent with his hand down the front of his stepgranddaughter's pants, while respondent's pants were open (see Matter of Anahys V. [John V.], 68 AD3d 485, 486 [2009],lv denied 14 NY3d 705 [2010]).
The derivative finding that respondent abused and neglected his biological children based onthe finding that he sexually abused his stepgrandchild is also supported by a preponderance of theevidence (see Family Ct Act § 1046 [a] [i]). One of the subject children witnessedthe sexual abuse and the other child was present in the apartment at the time the abuse tookplace. Respondent's actions demonstrated that he has a fundamental defect in his understandingof his [*2]parental obligations (see Matter of Marino S.,100 NY2d 361, 373-375 [2003]).
Contrary to respondent's contention, the court was entitled to draw a negative inferenceagainst him based on his failure to testify in the proceedings (see Matter of Dashawn W. [Antoine N.], 73 AD3d 574, 575[2010], lv dismissed 16 NY3d 767 [2011]). Concur—Mazzarelli, J.P., Catterson,DeGrasse, Mazanet-Daniels and Román, JJ.