| Matter of Joshua P. (David J.) |
| 2013 NY Slip Op 07738 [111 AD3d 836] |
| November 20, 2013 |
| Appellate Division, Second Department |
| In the Matter of Joshua P., an Infant. Administration forChildren's Services, Respondent; David J., Appellant. (Proceeding No. 1.) In the Matterof Shorena L., an Infant. Administration for Children's Services, Respondent; David J.,Appellant. (Proceeding No. 2.) In the Matter of Jelani S., an Infant. Administration forChildren's Services, Respondent; David J., Appellant. (Proceeding No. 3.) In the Matterof Justin J., an Infant. Administration for Children's Services, Respondent; David J.,Appellant. (Proceeding No. 4.) In the Matter of K'la J., an Infant. Administration forChildren's Services, Respondent; David J., Appellant. (Proceeding No. 5.) In the Matterof Sharece L., an Infant. Administration for Children's Services, Respondent; David J.,Appellant. (Proceeding No. 6.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Mordecai Newman ofcounsel; Alex Schierenbeck on the brief), for respondent. Kenneth Jaffe, Brooklyn, N.Y., attorney for the children Joshua P., Shorena L.,Jelani S., Justin J., and Sharece L. Steven Banks, New York, N.Y. (Tamara A. Steckler and Amy Hausknecht ofcounsel), attorney for the child K'la J.
In related child abuse and neglect proceedings pursuant to Family Court Act article10, the father appeals (1), as limited by his brief, from so much of an order offact-finding of the Family Court, Kings County (White, J.), dated March 30, 2012, as,after a hearing, found that he abused the child K'la J., and derivatively abused thechildren Joshua P., Shorena L., Jelani S., Justin J., and Sharece L., and (2) from twoorders of disposition (one as to the child Justin J., and one as to the children Joshua P.,Shorena L., Jelani S., K'la J., and Sharece L.) of the same court, both dated August 29,2012, which, upon the order of fact-finding and after a dispositional hearing, inter alia,placed him under the petitioner's supervision for a period of 12 months.
Ordered that the appeal from the order of fact-finding is dismissed, without costs ordisbursements, as the fact-finding order was superseded by the orders of disposition andis brought up for review on the appeals from the orders of disposition; and it is further,
Ordered that the appeals from so much of the orders of disposition as placed thefather under the petitioner's supervision for a period of 12 months is dismissed, withoutcosts or disbursements; and it is further,
Ordered that the orders of disposition are affirmed insofar as reviewed.
The appeals from so much of the orders of disposition as placed the appellant underthe supervision of the petitioner for a period of 12 months must be dismissed asacademic, as those portions of the orders expired by their own terms (see Matter of Trenasia J. [FrankJ.], 107 AD3d 992, 993 [2013]; Matter of Ndeye D. [Benjamin D.], 85 AD3d 1026, 1027[2011]). However, since an adjudication of abuse or neglect "constitutes a permanent andsignificant stigma that might indirectly affect the appellant's status in futureproceedings," the appeals from the orders of disposition, which bring up for review thefindings of abuse and derivative abuse in the order of fact-finding dated March 30, 2012,is not academic (Matter of Ndeye D. [Benjamin D.], 85 AD3d at 1027[internal quotation marks omitted]; see Matter of Trenasia J. [Frank J.],107 AD3d at 993).
The Family Court's finding that the appellant abused his daughter K'la J. by sexuallyabusing and forcibly touching her was supported by a preponderance of the evidence(see Family Ct Act §§ 1012 [e] [iii]; 1046 [b] [i]; Penal Law§§ 130.00 [3]; 130.52, 130.55, 130.60; Matter of Lauryn H. [William A.], 73 AD3d 1175, 1176[2010]). In light of the conflicting testimony presented at the fact-finding hearing, thefactual findings of the Family Court turned largely on its assessment of witnesses'credibility, which is entitled to great weight (see Matter of Trenasia J. [FrankJ.], 107 AD3d at 993; Matter of Lauryn H. [William A.], 73 AD3d at1176). There is no basis in the record here to disturb the Family Court's assessment of thewitnesses' credibility. Moreover, since the petitioner established by a preponderance ofthe evidence that the appellant committed the offenses of sexual abuse and forcibletouching against K'la J., as defined in Penal Law §§ 130.52, 130.55 and130.60, the Family Court's scrivener's error in also identifying a nonexistent section ofthe Penal Law in the order of fact-finding has no effect on the finding of abuse (seegenerally Family Ct Act § 1012 [e] [iii]).
The appellant's abuse of K'la supported the Family Court's finding of derivativeabuse of the other subject children, as the conduct "established a fundamental defect in[the appellant]'s understanding of his parental duties relating to the care of children anddemonstrated that his impulse control was so defective as to create a substantial risk ofharm to any child in his care" (Matter of Angelica M. [Nugene A.], 107 AD3d 803,804-805 [2013]; see Matter ofLeah R. [Miguel R.], 104 AD3d 774, 774 [2013]; Matter of Daniel W., 37 AD3d842, 843 [2007]).
The appellant's remaining contention is without merit. Skelos, J.P., Balkin, Lott andHinds-Radix, JJ., concur.