IN RE: LATIFAH C. (Anonymous)

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

IN RE: LATIFAH C. (Anonymous), Administration for Children's Services, petitioner-respondent; Morris L. appellant, et al., respondent.  (Proceeding No. 1). In the Matter of Latisha L. (Anonymous), Administration for Children's Services, petitioner-respondent; Morris L., appellant, et al., respondent.  (Proceeding No. 2). In the Matter of Lyasia C. (Anonymous), Administration for Children's Services, petitioner-respondent; Morris L., appellant, et al., respondent.  (Proceeding No. 3).

Decided: November 28, 2006

THOMAS A. ADAMS, J.P., GLORIA GOLDSTEIN, STEVEN W. FISHER, and ROBERT A. LIFSON, JJ. Matthew M. Lupoli, Flushing, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and John Hogrogian of counsel), for petitioner-respondent. Cynthia A. Lee, Staten Island, N.Y., Law Guardian for Latifah C. David Laniado, Brooklyn, N.Y., Law Guardian for Latisha L. Elliot Green, Brooklyn, N.Y., Law Guardian for Lyasia C.

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 a fact-finding order of the Family Court, Kings County (Turbow, J.), dated July 8, 2004, made after a hearing, as found, in effect, that the father abused the child Latifah and derivatively abused the children Lyasia and Latisha, and found that the additional elements of severe abuse (see Social Services Law § 384-b[8][a][ii] ) were proven and that the children were severely abused children, (2) from an order of disposition of the same court dated August 25, 2004, which, upon the fact-finding order, after a dispositional hearing, inter alia, placed the children in the custody of the Administration for Children's Services for a period of 12 months and (3) an order of the Family Court, Kings County (Danoff, J.), dated September 30, 2004.

ORDERED that the appeal from the fact-finding order is dismissed, without costs or disbursements, as that order was superseded by the order of disposition;  and it further,

ORDERED that the appeal from so much of the order of disposition as placed the children in the custody of the Administration for Children's Services for a period of 12 months is dismissed as academic, without costs or disbursements;  and it is further,

ORDERED that the appeal from the order dated September 30, 2004, is dismissed as abandoned, without costs or disbursements (see 22 NYCRR 670.8[e] );  and it is further,

ORDERED that the order of disposition is modified, on the law, by (1) deleting the provision thereof finding that the additional elements of severe abuse were proven and that the children were severely abused children, (2) deleting the provision thereof finding that the father derivatively abused the child Latisha, and (3) adding thereto a decretal paragraph stating:  “Pursuant to Family Court Act § 1052(c), Morris L. is advised that any subsequent adjudication of child abuse, as defined in Family Court Act § 1012(e)(iii), or any subsequent finding of a felony sex offense as defined in Penal Law §§ 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, or 130.70, arising out of acts committed by him, may result in the commitment of the guardianship and custody of the children or other children pursuant to Social Services Law § 384-b”;  as so modified, the order of disposition is affirmed insofar as reviewed, without costs or disbursements, and the fact-finding order is modified accordingly.

The appeal from so much of the order of disposition as placed the children in the custody of the Administration for Children's Services for a period of 12 months must be dismissed as academic, as the period of placement expired by its own terms (see Matter of Garth S., 309 A.D.2d 940, 766 N.Y.S.2d 96;  Matter of Fatima Mc., 292 A.D.2d 532, 533, 740 N.Y.S.2d 87).

 The Family Court's finding that the father sexually abused the child Latifah is supported by a preponderance of the evidence (see Matter of Sylvia J., 23 A.D.3d 560, 562, 804 N.Y.S.2d 783;  Matter of Jasmine A., 295 A.D.2d 504, 505, 744 N.Y.S.2d 850).   Where, as here, the Family Court is primarily confronted with issues of credibility, its factual findings must be accorded great weight on appeal (see Matter of Irene O., 38 N.Y.2d 776, 381 N.Y.S.2d 865, 345 N.E.2d 337;  Matter of Sylvia J., supra;  Matter of Commissioner of Social Servs. of City of N.Y. v. Clifton F., 207 A.D.2d 836, 837, 616 N.Y.S.2d 981).   The father's claim that the Family Court failed to state the grounds for the abuse finding (see Family Ct. Act § 1051) does not require reversal “where, as here, the record amply supports Family Court's ultimate finding” (Matter of Amber VV., 19 A.D.3d 767, 769, 797 N.Y.S.2d 144;  see Matter of Aishia O., 284 A.D.2d 581, 584, 725 N.Y.S.2d 738;  Matter of Anita U., 185 A.D.2d 378, 379, 585 N.Y.S.2d 826).   Thus, we discern no basis to disturb the Family Court's finding of sexual abuse with respect to the child Latifah.

Similarly, the Family Court's finding of derivative abuse as to the child Lyasia was supported by a preponderance of the evidence (see Family Ct. Act § 1046[a][i];  Matter of Stephanie R., 21 A.D.3d 417, 799 N.Y.S.2d 804;  Matter of Jessica S., 18 A.D.3d 562, 795 N.Y.S.2d 93).   However, since the petition with respect to Latisha failed to allege derivative abuse and was not amended in accordance with Family Court Act § 1051(b), the finding of derivative abuse with respect to Latisha was procedurally improper (see Matter of Stephanie R., supra;  cf. Matter of Shawniece E., 110 A.D.2d 900, 488 N.Y.S.2d 733;  Matter of Terry S., 55 A.D.2d 689, 389 N.Y.S.2d 55).

 In addition to its finding of abuse as to all three children, the Family Court made a further finding that the children were severely abused, as defined in Social Services Law § 384-b(8)(a).   Because such a finding is admissible, and often central, in a subsequent proceeding to terminate parental rights, (see Family Ct. Act § 1051[e];  Social Services Law § 384-b[4] [e] ), it must be based on clear and convincing evidence (see Family Ct. Act § 1051[e] ), and must include, inter alia, a finding that “the agency has made diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate the [parent], when such efforts will not be detrimental to the best interests of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foreseeable future” (Social Services Law § 384-b[8][a][iv] ).   As no proof of such “diligent efforts” was tendered by the agency here, the Family Court's additional finding of severe abuse cannot stand.

The father correctly contends that the Family Court failed to issue the warnings required by Family Court Act § 1052(c).  Nevertheless, because he has not suffered any prejudice as a result of that omission, the defect may be remedied by modifying the order of disposition with respect to him to add the required language (see CPLR 2001;  Matter of Heather S., 19 A.D.3d 606, 797 N.Y.S.2d 136;  Matter of Jasmine A., supra ).

The father's remaining contentions are without merit.

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