Darwin F., Respondent-Appellant. v. << (2006)

 Respondent appeals from an order of fact-finding and disposition finding that he abused his 16-year-old sister-in-law when she resided with respondent and her sister during a four-month period and that he neglected his sons.   Respondent also challenges orders of protection that were incorporated in the order on appeal, which ordered him to stay away from his sons until their 18th birthdays.   Contrary to the contention of respondent, the evidence establishes that he was a person legally responsible for the care of his sister-in-law during the four months in which she resided with respondent and her sister, i.e., he acted as the functional equivalent of a parent with respect to her (see Family Ct. Act § 1012[g];  Matter of Rebecca X., 18 A.D.3d 896, 898, 795 N.Y.S.2d 113, lv. denied 5 N.Y.3d 707, 801 N.Y.S.2d 801, 835 N.E.2d 661;  Matter of Devon W., 9 A.D.3d 830, 779 N.Y.S.2d 690;  see generally Matter of Yolanda D., 88 N.Y.2d 790, 795-796, 651 N.Y.S.2d 1, 673 N.E.2d 1228).   Contrary to the further contention of respondent, petitioner established by a preponderance of the evidence that he abused his sister-in-law and neglected his sons (see § 1046[b][i] ).   The sister-in-law testified that respondent had sex with her while she lived with him, and respondent also testified that he had sex with her.   The child was therefore an abused child within the meaning of section 1012(e)(iii).   The abuse by respondent of his sister-in-law “demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [his] care” (Matter of Daniella HH., 236 A.D.2d 715, 716, 654 N.Y.S.2d 200), and thus we further conclude that the finding of derivative neglect of respondent's sons is supported by a preponderance of the evidence (see Matter of Rico D., 19 A.D.3d 416, 796 N.Y.S.2d 144;  Matter of Ramsay M., 17 A.D.3d 678, 679, 794 N.Y.S.2d 105).   Moreover, petitioner presented evidence that respondent kept a loaded shotgun in an area accessible to his sons, thus further supporting the finding that respondent neglected his sons (see Matter of Nicole H., 277 A.D.2d 380, 381, 717 N.Y.S.2d 222).

 We agree with respondent that Family Court failed to comply with Family Court Act § 1052(b)(i) by failing to state the grounds for its disposition in the order.   The error is harmless, however, because the court set forth those grounds in its underlying decision and there thus was no prejudice to respondent (see Matter of Jasmine N., 15 A.D.3d 491, 789 N.Y.S.2d 718;  Matter of Aishia O., 284 A.D.2d 581, 584, 725 N.Y.S.2d 738).   We further agree with respondent that the court failed to comply with section 1051(e) by failing to make a finding of “the specific sex offense” committed by respondent.   Nevertheless, this Court may make the necessary finding (see Matter of Christina A., 216 A.D.2d 928, 629 N.Y.S.2d 553;  Matter of Ashley AA., 212 A.D.2d 937, 938, 622 N.Y.S.2d 999), and we do so here.   The record before us contains the plea minutes of the criminal proceeding in which respondent pleaded guilty to rape in the third degree, and the record therefore supports the finding that respondent violated Penal Law § 130.25(2) (see Christina A., 216 A.D.2d at 928-929, 629 N.Y.S.2d 553).   Respondent failed to show any prejudice arising from the court's error in failing to comply with Family Court Act § 1051(e), and thus we deem that error harmless (see Ashley AA., 212 A.D.2d at 939, 622 N.Y.S.2d 999).

We reject the further contention of respondent that the court lacked the authority to issue the orders of protection that ordered him to stay away from his sons until their 18th birthdays.   Although respondent is correct that Family Court Act § 1056(4) does not apply here because he was the father of the boys (see Matter of Cayuga County Health & Human Servs. v. Dennis E.M., 303 A.D.2d 1053, 1054, 756 N.Y.S.2d 690), the court nevertheless had the authority to issue the orders of protection pursuant to section 1056(1).   An order of protection issued pursuant to section 1056(1) “shall expire no later than the expiration date of, and may be extended with, such other order made under this part,” and here the order of fact-finding and disposition has no expiration date.   We thus reject respondent's contention that the court lacked the authority to issue the orders of protection for the specified duration set forth therein.   We further reject the contention of respondent that the court in effect terminated his parental rights (see Matter of Esther CC., 194 A.D.2d 949, 951-952, 598 N.Y.S.2d 871;  Matter of Erin G., 139 A.D.2d 737, 739-740, 527 N.Y.S.2d 488).   We have considered respondent's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: