IN RE: KENNEDIE M. and Kodie M.

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: KENNEDIE M. and Kodie M. Erie County Department of Social Services, Petitioner–Respondent; Kimberly M., Respondent, Douglas M., Respondent–Appellant. Charles D. Halvorsen, Esq., Attorney for the Children, Appellant.

Decided: November 18, 2011

PRESENT:  SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ. David C. Schopp, Attorney for the Children, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), Appellant Pro Se. William D. Broderick, Jr., Elma, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.

 Respondent father and the Attorney for the Children appeal from an order of fact-finding and disposition that, upon a finding that the father neglected his two children, placed the father and the children under the supervision of petitioner for a period of one year.   Contrary to the father's contention, “the finding of neglect is supported by a preponderance of the evidence” (Matter of Merrick T., 55 A.D.3d 1318, 1318, 866 N.Y.S.2d 839).   Petitioner presented one witness, and Family Court found that witness credible.   It is well established that “the court's credibility determinations are ․ entitled to great deference” (Matter of Syira W., 78 A.D.3d 1552, 1553, 911 N.Y.S.2d 551;  see Matter of Merrick T., 55 A.D.3d 1318, 866 N.Y.S.2d 839).   Moreover, the court properly drew “the strongest possible negative inference” against the father after he failed to testify at the fact-finding hearing (Matter of Jasmine A., 18 A.D.3d 546, 548, 795 N.Y.S.2d 87;  see Matter of Jenny N., 262 A.D.2d 951, 692 N.Y.S.2d 554).

 The father's adult stepdaughter was the sole witness for petitioner, and she testified that the father sexually abused her for a period of years beginning when she was 15.   That testimony “supports the finding of derivative neglect with respect to [the subject children inasmuch as] the impaired level of parental judgment ․ shown by [the father's] behavior created a substantial risk to [those children]” (Matter of Peter C., 278 A.D.2d 911, 911, 718 N.Y.S.2d 551 [internal quotation marks omitted];  see Matter of Devre S., 74 A.D.3d 1848, 902 N.Y.S.2d 739;  Matter of Jovon J., 51 A.D.3d 1395, 857 N.Y.S.2d 850).   Contrary to the father's contention, the court may make a finding of derivative neglect even if the child who was sexually abused is not a subject of the neglect petition (see Matter of Kole HH., 61 A.D.3d 1049, 1052–1053, 876 N.Y.S.2d 199, lv. dismissed 12 N.Y.3d 898, 884 N.Y.S.2d 679, 912 N.E.2d 1058).

In any event, we further conclude that the finding of neglect is supported by the stepdaughter's testimony that the father engaged in acts of domestic violence and that such acts occasionally occurred in the presence of the subject children (see Matter of Aliyah B., 87 A.D.3d 943, 930 N.Y.S.2d 2;  Matter of Christiana C., 86 A.D.3d 606, 607, 928 N.Y.S.2d 50;  Matter of Syira W., 78 A.D.3d 1552, 911 N.Y.S.2d 551).   We see no need to address the father's remaining challenge to the sufficiency of the evidence.

 The father failed to preserve for our review his further contention that the court erred in permitting the stepdaughter's attorney to participate in the fact-finding hearing (see generally Family Ct. Act § 164;  CPLR 5501[a][3];  Matter of Diamond K., 31 A.D.3d 553, 817 N.Y.S.2d 681).   The father also failed to preserve for our review his contention that the court erred in taking judicial notice of a family offense petition filed against the father (see Matter of Damian M., 41 A.D.3d 600, 836 N.Y.S.2d 422).   We reject the father's further contention that the court erred in admitting in evidence his substance abuse treatment records.   The court providently exercised its discretion in ordering the disclosure of those records inasmuch “as those records were clearly relevant to its determination [on the issue of neglect].   The ․ [c]ourt's finding of good cause is supported by the record” (Matter of Marlene D., 285 A.D.2d 462, 463, 727 N.Y.S.2d 338, lv. denied 97 N.Y.2d 605, 737 N.Y.S.2d 52, 762 N.E.2d 930;  see 42 USC § 290dd–2 [b] [2][C];  42 CFR 2.64[d] ).

The Attorney for the Children contends only that the court should have ordered the father to obtain sexual offender treatment.   Inasmuch as that contention involves a challenge to the dispositional part of the order and the order has expired by its terms, we conclude that the appeal by the Attorney for the Children must be dismissed as moot (see Matter of Myisha B., 73 A.D.3d 625, 900 N.Y.S.2d 863;  Matter of Chelsea M., 61 A.D.3d 1030, 1032, 876 N.Y.S.2d 222).

It is hereby ORDERED that the appeal by Charles D. Halvorsen, Esq., Attorney for the Children, is unanimously dismissed and the order is otherwise affirmed without costs.