| Matter of Adriel R. (David P.) |
| 2014 NY Slip Op 03272 [117 AD3d 744] |
| May 7, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Adriel R. Administration for Children'sServices, Respondent; David P., Appellant. |
Carol Kahn, New York, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnensheinand Susan P. Greenberg of counsel), for respondent.
Terrence J. Worms, Flushing, N.Y., attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the fatherappeals (1) from an order of disposition of the Family Court, Queens County (McGowan,J.), dated May 3, 2013, which, upon an order of fact-finding of the same court datedFebruary 26, 2013, granting the petitioner's motion for summary judgment on the issue ofderivative abuse and thereupon finding that the father derivatively abused the subjectchild, inter alia, placed the subject child in the custody of the Commissioner of the NewYork City Department of Social Services until the completion of the next permanencyhearing, and (2) from an order of protection of the same court dated May 9, 2013, whichdirected him to stay away from the subject child until and including May 3, 2014. Theappeal from the order of disposition brings up for review the order of fact-finding datedFebruary 26, 2013.
Ordered that the appeal from so much of the order of disposition as placed thesubject child in the custody of the Commissioner of the New York City Department ofSocial Services until the completion of the next permanency hearing is dismissed asacademic, without costs or disbursements; and it is further,
Ordered that the order of disposition is affirmed insofar as reviewed, without costs ordisbursements; and it is further,
Ordered that the appeal from the order of protection is dismissed as academic,without costs or disbursements.
The order of protection expired by its own terms on May 3, 2014, and thedetermination of the appeal from that order of protection would, under the facts of thiscase, have no direct effect upon the parties (see Matter of Max F. [Emma F.-G.], 97 AD3d 816, 817[2012]; Matter of Claudia G.[Ermelio G.], 71 AD3d 894, 895 [2010]; Matter of Brittany C. [Linda C.], 67 AD3d 788, 789-790[2009]). Accordingly, the appeal from the order of protection must be dismissed asacademic.
[*2] The appeal from so much of theorder of disposition as placed the subject child in the custody of the Commissioner of theNew York City Department of Social Services until the next permanency hearing must bedismissed as academic, as the period of placement has expired (see Matter of Emanuel Q. [LuisM.], 73 AD3d 1181 [2010]; Matter of Ifeiye O., 53 AD3d 501 [2008]). However, theappeal from the portion of the order of disposition which brings up for review the findingof derivative abuse is not academic (see Matter of Emanuel Q. [Luis M.], 73AD3d at 1181).
Here, the Family Court properly granted the petitioner's motion for summaryjudgment on the issue of whether the father derivatively abused the subject child. Thepetitioner met its prima facie burden by demonstrating that the father previously pleadedguilty to attempted sexual misconduct, and was convicted of endangering the welfare ofa child in connection with allegations concerning two of his daughters. In addition, thefather was previously found by the Family Court to have sexually abused one of hisdaughters, to have neglected another one of his daughters, and to have derivativelyneglected two of his other children. These acts "established a fundamental defect in thefather'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 ofLeon K. [Marilyn O.], 69 AD3d 856 [2010]). In opposition to the petitioner'sprima facie showing, the father failed to raise a triable issue of fact.
The father's remaining contention is without merit. Balkin, J.P., Dickerson,Leventhal and Roman, JJ., concur.