IN RE: IVY R.Q.M. (Anonymous).

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

IN RE: IVY R.Q.M. (Anonymous). Westchester County Department of Social Services, Respondent; v. Afroz Q.M. (Anonymous), Appellant. (Proceeding No. 1)

IN RE: Rafay Q.M. (Anonymous). Westchester County Department of Social Services, Respondent; v. Afroz Q.M. (Anonymous), Appellant. (Proceeding No. 2)

IN RE: Rahil Q.M. (Anonymous). Westchester County Department of Social Services, Respondent; v. Afroz Q.M. (Anonymous), Appellant. (Proceeding No. 3)

IN RE: Raiyan Q.M. (Anonymous). Westchester County Department of Social Services, Respondent; v. Afroz Q.M. (Anonymous), Appellant. (Proceeding No. 4)

2018–14695

Decided: June 24, 2020

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, PAUL WOOTEN, JJ. Helene M. Greenberg, Elmsford, NY, for appellant. John M. Nonna, County Attorney, White Plains, N.Y. (Linda Trentacoste and David H. Chen of counsel), for respondent. Carl D. Birman, Schenectady, NY, attorney for the children.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the father appeals from (1) an order of fact-finding of the Family Court, Westchester County (Hal B. Greenwald, J.), entered July 25, 2018, and (2) an order of disposition of the same court entered November 13, 2018.  The order of fact-finding, after a fact-finding hearing, found that the father neglected the subject children.  The order of disposition, upon the order of fact-finding and after a dispositional hearing, inter alia, continued the placement of the children in the custody of the Westchester County Commissioner of Social Services until the completion of the next permanency hearing.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition;  and it is further,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 continued the placement of the subject children in the custody of the Westchester County Commissioner of Social Services until the completion of the next permanency hearing is dismissed as academic, without costs or disbursements;  and it is further,

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

The appeal from so much of the order of disposition as continued the placement of the subject children in the custody of the Westchester County Commissioner of Social Services until the completion of the next permanency hearing is dismissed as academic as additional permanency hearings have thereafter been held (see Matter of Grace M. [Leighton M.], 180 A.D.3d 912, 912, 119 N.Y.S.3d 511;  Matter of Peter T. [Shay S.P.], 173 A.D.3d 1043, 1045, 105 N.Y.S.3d 538).  However, the appeal from so much of the order of disposition as brings up for review the finding that the father neglected the children is not academic, since the adjudication of neglect constitutes a permanent and significant stigma which might indirectly affect the father's status in future proceedings (see Matter of Jemima M. [Aura M.], 151 A.D.3d 862, 863, 56 N.Y.S.3d 563;  Matter of Justin P. [Damien P.], 148 A.D.3d 903, 904, 48 N.Y.S.3d 773).

The subject children resided with their mother and maternal grandmother at the grandmother's residence until in or around June 2017, when an order of protection was entered against the mother and in favor of the children, based on allegations of the mother's substance abuse, and the mother was required to leave the residence.  The father then moved in with the children and grandmother.  In August 2017, the children were removed from the care and custody of the father and placed in the custody of the Westchester County Commissioner of Social Services after an investigation was conducted into an alleged incident of domestic violence perpetrated by the father against the mother and the grandmother in the grandmother's home.  The Westchester County Department of Social Services (hereinafter DSS) commenced these proceedings alleging that the father had neglected the children.  Following fact-finding and dispositional hearings, the Family Court determined that the children were neglected and directed, inter alia, that they remain in the custody of the Commissioner of Social Services of Westchester County until completion of the next permanency hearing.  The father appeals.

Contrary to the father's contention, DSS established by a preponderance of the evidence that his conduct with respect to the children constituted neglect and placed the children in imminent risk of harm since the father failed, or refused, to prevent the mother from visiting the residence, despite his knowledge of the mother's long and continuing history of substance abuse (see Matter of Victoria B. [Jonathan M.], 161 A.D.3d 1145, 1146, 77 N.Y.S.3d 471;  Matter of Arthur C., 260 A.D.2d 478, 479, 688 N.Y.S.2d 572;  see generally Family Ct Act § 1012[f][i][B];  Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840), and despite the existence of the order of protection against the mother in favor of the children, which the father failed, or refused, to enforce (see Matter of Amelia W. [Gloria D.W.], 77 A.D.3d 841, 842, 908 N.Y.S.2d 742;  Matter of Susan B., 264 A.D.2d 478, 478–479, 694 N.Y.S.2d 454).

Moreover, DSS established by a preponderance of the evidence that the father further placed the children in imminent risk of harm when he punched the mother in the face, causing her nose to bleed, and then threatened the grandmother with a knife, in the presence of the children (see Matter of Jordan R. [Yon R.-W.], 162 A.D.3d 671, 672, 77 N.Y.S.3d 491;  Matter of Briana F. [Oswaldo F.], 69 A.D.3d 718, 719, 892 N.Y.S.2d 526).  Contrary to the father's contention, the out-of-court statements two of the children made to the caseworker concerning this incident cross-corroborated each other for purposes of Family Court Act § 1046(a)(vi), and were further corroborated by a bloodstain the caseworker observed on the living room carpet (see Matter of Nicole V., 71 N.Y.2d 112, 124, 524 N.Y.S.2d 19, 518 N.E.2d 914;  Matter of Antonio T. [Franklin T.], 169 A.D.3d 699, 700, 93 N.Y.S.3d 369;  Matter of Arique D. [Elizabeth A.], 111 A.D.3d 625, 627, 975 N.Y.S.2d 82).  To the extent the father's testimony contradicted the children's statements to the caseworker, this Court will generally regard the Family Court's credibility determinations with “[g]reat deference” (Matter of Oliver A. [Oguis A.-D.], 167 A.D.3d 867, 868, 90 N.Y.S.3d 142).  “Where, as here, the court was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony of one party over that of the other, its determination will not be disturbed unless clearly unsupported by the record” (Matter of Mohammed v. Mohammed, 174 A.D.3d 615, 615–616, 101 N.Y.S.3d 884;  see Matter of D.S. [Shaqueina W.], 147 A.D.3d 856, 857, 47 N.Y.S.3d 364).  The Family Court's determination crediting DSS's witnesses, and finding the testimony of the father to be “incredible, confusing, and unreliable” was clearly supported by the record.

Lastly, the evidence adduced at the fact-finding hearing established that the children's home was maintained in a deplorable and unsanitary condition (see Matter of Kieara N. [Shasha F.], 167 A.D.3d 620, 622, 89 N.Y.S.3d 232;  Matter of Todd D. [Jean L.], 9 A.D.3d 462, 463, 780 N.Y.S.2d 180).

Accordingly, we agree with the Family Court's finding that the father neglected the children.

RIVERA, J.P., CHAMBERS, AUSTIN and WOOTEN, JJ., concur.

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