IN RE: NAPHTALI A. (Anonymous). (2018)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the father appeals from (1) a decision of the Family Court, Kings County (Ilana Gruebel, J.), dated January 23, 2017, (2) an order of fact-finding of the same court dated March 20, 2017, and (3) an order of disposition of the same court, also dated March 20, 2017.  The order of fact-finding, upon the decision, found that the father, Winifred A., sexually abused and neglected the child Yahchannah A., and derivatively abused and neglected the children Naphtali A., Noah A., Samach A., Nathanael A., and Asher A. The order of disposition, upon the order of fact-finding and after a dispositional hearing, inter alia, upon consent, released the children Naphtali A., Noah A., Samach A., Nathanael A., and Asher A. to the custody of their nonrespondent mothers and the father with supervision of the father for a period of 12 months.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Matter of Renee P.-F. v. Frank G., 161 A.D.3d 1163, 79 N.Y.S.3d 45;  cf. CPLR 5512[a] );  and it is further,

ORDERED that the appeal from so much of the order of fact-finding as determined that the father derivatively abused and neglected the children Naphtali A., Noah A., Samach A., Nathanael A., and Asher A. is dismissed, without costs or disbursements, as that portion of the order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition;  and it is further,

ORDERED that the appeal from so much of the order of disposition as released the children Naphtali A., Noah A., Samach A., Nathanael A., and Asher A., upon consent, to the custody of their mothers and the father with supervision of the father for a period of 12 months is dismissed, without costs or disbursements;  and it is further,

ORDERED that the order of fact-finding is affirmed insofar as reviewed, without costs or disbursements;  and it is further,

ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

In October 2015, the Administration for Children's Services (hereinafter ACS) commenced these proceedings pursuant to article 10 of the Family Court Act, alleging that the father had sexually abused and neglected the child Yahchannah A., and derivatively abused and neglected the children Naphtali A., Noah A., Samach A., Nathanael A., and Asher A. At a fact-finding hearing, Yahchannah A. testified that, from the age of 5 through the age of 17, the father inserted his fingers into her vagina, performed oral sex on her, made her perform oral sex on him, and had vaginal and anal sex with her.  Yahchannah A. also testified that the father stopped providing food and financial support for her in 2015.  She additionally testified that she resided in the basement of the father's home, the basement was only partially lit, the refrigerator worked only sporadically, and the ceiling had partially collapsed in the bathroom, preventing her from using the bathtub.  The evidence at the fact-finding hearing established that the children Noah A., Naphtali A., Asher A., and Nathaniel A. lived on the first floor of the father's house with their mother, and the child Samach A. lived on the third floor of the father's house with his mother.  The father, inter alia, denied all allegations of abuse and neglect.  After the fact-finding hearing, the Family Court determined that ACS had proven by a preponderance of the evidence that the father had abused and neglected Yahchannah A. and had derivatively abused and neglected the other children.  After a dispositional hearing, among other things, the parties agreed that the children Naphtali A., Noah A., Samach A., Nathanael A., and Asher A., would be released to the custody of their respective mothers and the father with supervision of the father by ACS for a period of 12 months.

The appeal from so much of the order of disposition as released the children Naphtali A., Noah A., Samach A., Nathanael A. and Asher A., upon consent, to the custody of their mothers and the father with supervision of the father for a period of 12 months must be dismissed, as no appeal lies from an order entered upon the consent of the appealing party (see Matter of Eunice D. [James F.D.], 111 A.D.3d 627, 628, 975 N.Y.S.2d 73;  Matter of Brian R., 48 A.D.3d 576, 577, 852 N.Y.S.2d 235).  In any event, that portion of the order of disposition has been rendered academic, as it has expired by its own terms (see Matter of Christopher D.B. [Lorraine H.], 157 A.D.3d 944, 948, 69 N.Y.S.3d 719;  Matter of Chaim R.[Keturah Ponce R.], 94 A.D.3d 1127, 1129, 943 N.Y.S.2d 195).  However, since an adjudication of abuse or neglect constitutes a permanent and significant stigma which might indirectly affect the father's status in future proceedings, the appeal from so much of the order of disposition as brings up for review the findings of derivative abuse and neglect set forth in the order of fact-finding is not academic (see Matter of Baby Boy D. [Adanna C.], 144 A.D.3d 1026, 1027, 43 N.Y.S.3d 367;  Matter of Eunice D. [James F.D.], 111 A.D.3d at 628, 975 N.Y.S.2d 73).

The Family Court's finding that the father sexually abused the child Yahchannah A. was supported by a preponderance of the evidence (see Family Ct. Act §§ 1012[e][iii];  1046[b][i];  Matter of Cashmere T. [Andrew S.], 161 A.D.3d 1177, 1178, 77 N.Y.S.3d 477;  Matter of Taurice M. [Gregory A.], 147 A.D.3d 844, 47 N.Y.S.3d 352), as was the finding that he neglected her (see Family Ct Act §§ 1012[f][i];  1046[b][i];  Matter of Stephen L. [Patrick S.L.], 161 A.D.3d 1155, 1156, 77 N.Y.S.3d 347;  Matter of China C. [Alexis C.], 116 A.D.3d 953, 954, 985 N.Y.S.2d 104).  In light of the conflicting testimony presented at the fact-finding hearing, the factual findings of the court turned largely on its assessment of the witnesses' credibility, which is entitled to great weight (see Matter of Cashmere T. [Andrew S.], 161 A.D.3d at 1178, 77 N.Y.S.3d 477;  Matter of Brianna M. [Corbert G.], 152 A.D.3d 600, 601, 58 N.Y.S.3d 534;  Matter of Desiree P. [Michael H.], 149 A.D.3d 841, 49 N.Y.S.3d 924).  There is no basis in the record to disturb the court's assessment of the witnesses' credibility.

The Family Court's determination that the father derivatively abused and neglected the other subject children also was supported by a preponderance of the evidence.  “[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent” (Family Ct. Act § 1046[a][i] ).  There is no per se rule that a finding of abuse or neglect of one sibling requires a finding of derivative abuse or neglect with respect to the other siblings (see Matter of Dayannie I.M. [Roger I.M.], 138 A.D.3d 747, 749, 29 N.Y.S.3d 61;  Matter of Dutchess County Dept. of Social Servs. v. Douglas E., 191 A.D.2d 694, 595 N.Y.S.2d 800).  The focus of the inquiry with respect to derivative findings is whether the evidence of abuse or neglect of another child or children demonstrates such an impaired level of parental judgment so as to create a substantial risk of harm for the other child or children in the parent's care (see Matter of Marino S., 100 N.Y.2d 361, 374, 763 N.Y.S.2d 796, 795 N.E.2d 21;  Matter of Kristina I. [Al Quran F.], 163 A.D.3d 565, 567, 76 N.Y.S.3d 420;  Matter of Harmonee B. [Roy B.], 161 A.D.3d 852, 853, 73 N.Y.S.3d 455;  Matter of Brysen A. [Bryan A.], 161 A.D.3d 850, 851, 75 N.Y.S.3d 527;  Matter of Dayannie I.M. [Roger I.M.], 138 A.D.3d at 749, 29 N.Y.S.3d 61).  The record here supports the court's determination that the father's abuse and neglect of Yahchannah A. evinced a flawed understanding of his duties as a parent and impaired parental judgment such that the other children were at risk of substantial harm as well (see Matter of Brysen A. [Bryan A.], 161 A.D.3d at 851, 75 N.Y.S.3d 527;  Matter of Angelica M. [Nugene A.], 107 A.D.3d 803, 805, 967 N.Y.S.2d 740;  Matter of Leah R. [Miguel R.], 104 A.D.3d 774, 961 N.Y.S.2d 249;  Matter of Daniel W., 37 A.D.3d 842, 843, 831 N.Y.S.2d 244).

The father's remaining contentions are either without merit or improperly raised for the first time in his reply brief.

RIVERA, J.P., LEVENTHAL, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.