Opinion
2019-07757 2019-07758 2019-07759 Docket Nos. N-9086-17, N-9087-17, N-9088-17
06-17-2020
In the MATTER OF NOAH N. (Anonymous). Administration for Children's Services, Respondent; v. Herold N. (Anonymous), Appellant. (Proceeding No. 1) In the Matter of Jakob D. (Anonymous). Administration for Children's Services, Respondent; v. Herold N. (Anonymous), Appellant. (Proceeding No. 2) In the Matter of Mia N. (Anonymous). Administration for Children's Services, Respondent; v. Herold N. (Anonymous), Appellant. (Proceeding No. 3)
Kyle Sosebee, Brooklyn, NY, for appellant. James E. Johnson, Corporation Counsel, New York, N.Y. (Aaron M. Bloom and Claibourne Henry of counsel), for respondent. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Judith Stern of counsel), attorney for the children.
Kyle Sosebee, Brooklyn, NY, for appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (Aaron M. Bloom and Claibourne Henry of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Judith Stern of counsel), attorney for the children.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 10, Herold N. appeals from (1) an order of fact-finding of the Family Court, Kings County (Alicea Elloras–Ally, J.), dated February 26, 2019, (2) an order of disposition of the same court dated May 9, 2019, and (3) an order of protection of the same court also dated May 9, 2019. The order of fact-finding, after a fact-finding hearing, determined that Herold N. neglected the subject children. The order of disposition, upon the order of fact-finding and after a dispositional hearing, inter alia, directed Herold N. to complete a batterer's accountability program, to comply with counseling until his therapist deems such therapy complete, and to sign releases so that his compliance could be monitored by the Administration for Children's Services. The order of protection, among other things, directed Herold N. to refrain from assaulting, stalking, or harassing the subject children until and including May 8, 2020.
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements; and it is further,
ORDERED that the appeal from order of protection is dismissed, without costs or disbursements; and it is further,
ORDERED that the order of disposition is affirmed, without costs or disbursements.
The appeal from the order of fact-finding must be dismissed, because that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition. The appeal from the order of protection must be dismissed as academic because it has expired on its own terms and imposes no enduring consequences on Herold N. (see Matter of Ariana M. [Edward M.], 179 A.D.3d 923, 925, 118 N.Y.S.3d 215 ; Matter of Max F. [Emma F.-G.], 97 A.D.3d 816, 817, 949 N.Y.S.2d 107 ).
The petitioner commenced related proceedings pursuant to Family Court Act article 10, alleging that Herold N. (hereinafter the father), the biological father of Noah N. and Mia N., and a person legally responsible for Jakob D., neglected the children. Following a fact-finding hearing, the Family Court found, by a preponderance of the evidence, that the father neglected the subject children. The father appeals.
At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected (see Family Ct Act § 1046[b][i] ; Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038 ; Matter of Brianna M. [Corbert G.], 152 A.D.3d 600, 58 N.Y.S.3d 534 ; Matter of Desiree P. [Michael H.], 149 A.D.3d 841, 49 N.Y.S.3d 924 ). The Family Court's findings with respect to credibility are entitled to great weight (see Matter of Brianna M. [Corbert G.], 152 A.D.3d at 601, 58 N.Y.S.3d 534 ; Matter of Monica M. [Mary M.], 151 A.D.3d 1705, 56 N.Y.S.3d 739 ; Matter of Jamel T. [Gemayel T.], 120 A.D.3d 504, 989 N.Y.S.2d 908 ).
Here, the evidence adduced at the fact-finding hearing was sufficient to prove, by a preponderance of the evidence, that the father neglected the children by committing an act of domestic violence against the mother while the children were nearby. The children observed the aftermath of the incident, which included seeing the mother bleeding from her head and crying, as well accompanying her in an ambulance to the hospital (see Family Ct Act § 1012[f][i][B] ; Matter of Celeste O. [Calvin A.], 119 A.D.3d 586, 987 N.Y.S.2d 903 ; Matter of Carmine G. [Franklin G.], 115 A.D.3d 594, 982 N.Y.S.2d 318 ; Matter of Angie G. [Jose D.G.], 111 A.D.3d 404, 974 N.Y.S.2d 369 ; Matter of Mohammad K.B. [Mohammed K–M.], 99 A.D.3d 796, 951 N.Y.S.2d 887 ). The evidence at the hearing further supported the Family Court's determination that the father neglected Jakob D. by using excessive corporal punishment on him (see Family Ct. Act § 1012[f][i][B] ; Matter of Lea E.P. [Jason J.P.], 176 A.D.3d 715, 110 N.Y.S.3d 431 ; Matter of Zana C. [Dana F.], 171 A.D.3d 1045, 1047, 98 N.Y.S.3d 326 ; Matter of Kaylarose J.H. [Rena R.D.], 160 A.D.3d 953, 955, 72 N.Y.S.3d 482 ; Matter of Imaani A. [Rafiyq A.], 150 A.D.3d 845, 51 N.Y.S.3d 892 ; Matter of Tayleese M.C. [Tunisha H.], 127 A.D.3d 1077, 7 N.Y.S.3d 464 ; Matter of Dylan G. [Victor M.], 119 A.D.3d 786, 989 N.Y.S.2d 321 ; Matter of Nurridin B. [Louis J.], 116 A.D.3d 770, 982 N.Y.S.2d 910 ; Matter of Aaliyah Q., 55 A.D.3d 969, 865 N.Y.S.2d 714 ; Matter of Nicholas L., 50 A.D.3d 1141, 857 N.Y.S.2d 629 ).
MASTRO, J.P., LEVENTHAL, MALTESE and IANNACCI, JJ., concur.