| Matter of Tayleese M.C. (Tunisha H.) |
| 2015 NY Slip Op 03354 [127 AD3d 1077] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Tayleese M.C. Administration forChildren's Services, Respondent; Tunisha H., Appellant. (Proceeding No. 1.) In theMatter of T'mya A.C. Administration for Children's Services, Respondent; Tunisha H.,Appellant. (Proceeding No. 2.) |
Anthony DeGuerre, Staten Island, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andDeborah A. Brenner of counsel), for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Laura Solecki and Janet Neustaetter of counsel),attorney for the children.
Appeal from an order of disposition of the Family Court, Kings County (AlanBeckoff, J.), dated October 24, 2013. The order, inter alia, released the subject childrento the custody of their father, with supervision. The appeal brings up for review an orderof fact-finding of that court, dated May 9, 2011, which, after a hearing, found that themother neglected the child T'mya A.C. and derivatively neglected the child TayleeseM.C.
Ordered that the appeal from the order of disposition is dismissed, without costs ordisbursements, except insofar as it brings up for review the order of fact-finding; and it isfurther,
Ordered that the order of disposition is affirmed insofar as reviewed, without costs ordisbursements.
The appeal from the order of disposition, except insofar as it brings up for review theorder of fact-finding dated May 9, 2011, must be dismissed as academic, as the order ofdisposition has expired by its own terms (see Matter of Cheryale B. [Michelle B.], 121 AD3d 976,976-977 [2014]; Matter ofKaleb B. [Harold S.], 119 AD3d 780, 780-781 [2014]; Matter of Ndeye D. [BenjaminD.], 85 AD3d 1026, 1027 [2011]; Matter of Alanie H., 83 AD3d 1066, 1067 [2011])."However, since the adjudication of neglect 'constitutes a permanent and significantstigma that might indirectly affect the appellant's status in future proceedings,' "the appeal from so much of the order of disposition [*2]as brings up for review the findings of neglect andderivative neglect in the order of fact-finding is not academic (Matter of Ndeye D.[Benjamin D.], 85 AD3d at 1027, quoting Matter of Daqwuan G., 29 AD3d 694, 695 [2006]; seeMatter of Cheryale B. [Michelle B.], 121 AD3d at 977).
"[A] party seeking to establish neglect must show, by a preponderance of theevidence (see Family Ct Act § 1046 [b] [i]), first, that a child'sphysical, mental or emotional condition has been impaired or is in imminent danger ofbecoming impaired and second, that the actual or threatened harm to the child is aconsequence of the failure of the parent or caretaker to exercise a minimum degree ofcare in providing the child with proper supervision or guardianship" (Nicholson v Scoppetta, 3NY3d 357, 368 [2004]).
Here, a preponderance of the evidence supports the Family Court's determination thatthe mother neglected the child T'mya A.C. by using excessive corporal punishment andcommitting acts of domestic violence against the father while in the child's presence,which impaired, or created an imminent danger of impairing, the child's physical, mental,or emotional condition (seeMatter of Dylan G. [Victor M.], 119 AD3d 786, 787 [2014]; Matter of Nurridin B. [LouisJ.], 116 AD3d 770, 771-772 [2014]; Matter of Eugene S. [Priscilla E.], 114 AD3d 691, 691[2014]; Matter of Michael G.C.[Michael C.], 103 AD3d 890, 891 [2013]).
The Family Court's determination that the father and T'mya testified credibly,whereas the mother's testimony lacked credibility, is entitled to considerable deference onappeal, and, on this record, there is no basis to disturb that determination (see Matter of Arique D. [ElizabethA.], 111 AD3d 625, 627 [2013]; Matter of Candacy C. [Clairmonte C.], 96 AD3d 836, 836[2012]; Matter of Christiana C.[Carleton C.], 86 AD3d 606, 607 [2011]; Matter of Isaiah S., 63 AD3d 948, 949 [2009]). In addition,the mother's contention that the Family Court improperly admitted testimony from T'myawithout determining whether she was competent to testify under oath is unpreserved forappellate review. In any event, this contention is without merit, as the record is sufficientto establish that T'mya was capable of testifying as a sworn witness (see Matter ofRobert F., 297 AD2d 610 [2002]).
The derivative finding of neglect as to the child Tayleese M.C. is also supported bythe evidence (see Family Ct Act § 1046 [a] [i]; Matter of James S. [KathleenS.], 88 AD3d 1006, 1006-1007 [2011]; Matter of Astrid C., 43 AD3d 819, 821 [2007]; Matterof Cybill V., 279 AD2d 582, 583 [2001]; Matter of Deandre T., 253 AD2d497, 498 [1998]).
The mother's remaining contentions are without merit. Chambers, J.P., Dickerson,LaSalle and Barros, JJ., concur.