| Matter of Linda F. (Jose F.) |
| 2014 NY Slip Op 05542 [119 AD3d 944] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 In the Matter of Linda F. Administration for Children'sServices, Respondent; Jose F., Appellant, et al. Respondent. (Proceeding No. 1.) In theMatter of Kai F. Administration for Children's Services, Respondent; Jose F., Appellant,et al., Respondent. (Proceeding No. 2.) In the Matter of Samantha F. Administration forChildren's Services, Respondent; Jose F., Appellant, et al., Respondent. (Proceeding No.3.) |
Helene Bernstein, Brooklyn, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgowand Suzanne K. Colt of counsel), for petitioner-respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Judith Stern ofcounsel), attorney for the child Linda F.
Cheryl Gammone, Staten Island, N.Y., attorney for the children Kai F. and SamanthaF.
In three related child protective proceedings pursuant to Family Court Act article 10,the father appeals (1), as limited by his brief, from so much of an order of fact-finding ofthe Family Court, Kings County (Weinstein, J.), dated April 18, 2013, as, after a hearing,found that he sexually abused the child Linda F. and derivatively abused the children KaiF. and Samantha F., (2) from an order of disposition of the same court, also dated April18, 2013, which, upon the order of fact-[*2]finding, andafter a dispositional hearing, inter alia, placed the child Linda F. in the custody of theCommissioner of Social Services of the City of New York until completion of the nextpermanency hearing and placed him under the supervision of the New York CityAdministration for Children's Services for a period of 12 months, (3) from an order ofprotection of the same court, also dated April 18, 2013, which, inter alia, directed him tostay away from the child Linda F. until and including April 18, 2014, and (4) from anorder of protection of the same court, also dated April 18, 2013, which, inter alia,directed him to refrain from assaulting, stalking, harassing, committing aggravatedharassment against, menacing, recklessly endangering, strangling, criminally obstructingthe breathing or circulation of, committing disorderly conduct against, committingcriminal mischief against, sexually abusing, engaging in sexual misconduct against,forcibly touching, intimidating, making threats against, or committing any criminaloffense against the children Kai F. and Samantha F. until and including April 18,2014.
Ordered that the appeal from the order of fact-finding is dismissed, without costs ordisbursements, as the order of fact-finding was superseded by the order of dispositionand is brought up for review on the appeal from the order of disposition; and it isfurther,
Ordered that the appeal from so much of the order of disposition as placed the childLinda F. in the custody of the Commissioner of Social Services of the City of New Yorkuntil completion of the next permanency hearing and placed the father under thesupervision of the New York City Administration for Children's Services for a period of12 months is dismissed as academic, without costs or disbursements; and it isfurther,
Ordered that the appeals from the orders of protection are dismissed as academic,without costs or disbursements; and it is further,
Ordered that the order of disposition is affirmed insofar as reviewed, without costs ordisbursements.
The orders of protection expired by their own terms on April 18, 2014, and thedetermination of the appeals from these orders of protection would, under the facts ofthis case, have no direct effect upon the parties (see Matter of Adriel R. [David P.], 117 AD3d 744, 745[2014]; Matter of Max F.[Emma F.-G.], 97 AD3d 816, 817 [2012]). Accordingly, the appeals from theorders of protection must be dismissed as academic.
The appeal from so much of the order of disposition as placed the child Linda F. inthe custody of the Commissioner of Social Services of the City of New York untilcompletion of the next permanency hearing and placed the father under the supervisionof the New York City Administration for Children's Services for a period of 12 monthsmust be dismissed as academic, as those portions of the order have already expired (see Matter of Joshua P. [DavidJ.], 111 AD3d 836, 837 [2013]; Matter of Alexandria M. [Mattie M.], 108 AD3d 548,548-549 [2013]; Matter of JasonBrian B., 33 AD3d 995, 995 [2006]). However, since an adjudication of abuseor neglect "constitutes a permanent and significant stigma that might indirectly affect theappellant's status in future proceedings," the appeal from so much of the order ofdisposition as brings up for review the findings of abuse and derivative abuse, as setforth in the order of fact-finding dated April 18, 2013, has not been rendered academic(Matter of Joshua P. [David J.], 111 AD3d at 837 [internal quotation marksomitted]; see Matter of NdeyeD. [Benjamin D.], 85 AD3d 1026, 1027 [2011]).
The Family Court's finding that the father abused his adopted daughter Linda F. bysexually abusing her was supported by a preponderance of the evidence (seeFamily Ct Act §§ 1012 [e] [iii]; 1046 [b] [i]; Penal Law§§ 130.25 [2]; 130.60 [2]; 130.80 [1] [b]; Matter of Lauryn H. [WilliamA.], 73 AD3d 1175, 1176 [2010]). In light of the conflicting testimonypresented at the fact-finding hearing, the factual findings of the Family Court turned onits assessment of witnesses' credibility, which is entitled to great weight (see Matterof Joshua P. [David J.], 111 AD3d at 837; Matter of Lauryn H. [William A.],73 AD3d at 1176). There is no basis in the record to disturb the Family Court'sassessment of the witnesses' credibility.
[*3] The father's abuse of Linda F. supported the Family Court's finding that hederivatively abused the other subject children, as the conduct "established a fundamentaldefect in the father's understanding of his parental duties relating to the care of childrenand demonstrated that his impulse control was so defective as to create a substantial riskof harm 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 Kyanna T. [WinstonR.], 99 AD3d 1011, 1013 [2012]). Dillon, J.P., Hall, Miller and Hinds-Radix,JJ., concur.