Opinion
924 CAF 19-00709
10-09-2020
In the MATTER OF BRYLEIGH E.N. Livingston County Department of Social Services, Petitioner-Respondent; v. Derek G., Respondent-Appellant. (Appeal No. 2.)
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (HEIDI W. FEINBERG OF COUNSEL), FOR RESPONDENT-APPELLANT. ASHLEY J. WEISS, MOUNT MORRIS, FOR PETITIONER-RESPONDENT.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (HEIDI W. FEINBERG OF COUNSEL), FOR RESPONDENT-APPELLANT.
ASHLEY J. WEISS, MOUNT MORRIS, FOR PETITIONER-RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent father appeals from an order entered pursuant to Family Court Act article 10 determining that he committed a felony sex offense against his daughter (see Family Ct Act §§ 1012 [e] [iii] [A] ; 1051 [e]; Social Services Law § 384-b [8] [a] [ii] ). In appeal No. 2, the father appeals from an order of fact-finding and disposition that, inter alia, determined that the subject child is an abused child and a severely abused child (see Family Ct Act §§ 1012 [e] [iii] [A] ; 1051 [e]; Social Services Law § 384-b [8] [a] [ii] ) and released the child to the custody of the nonrespondent mother (see Family Ct Act § 1054 [a] ). In appeal No. 3, the father appeals from an order granting the petition of Livingston County Department of Social Services (DSS) seeking termination of his parental rights pursuant to Social Services Law § 384-b.
As a preliminary matter, we note that the appeal from the order of fact-finding and disposition in appeal No. 2 brings up for review the propriety of the order in appeal No. 1, and we therefore dismiss the appeal from the order in appeal No. 1 (see Matter of Lisa E. [appeal No. 1], 207 A.D.2d 983, 983, 617 N.Y.S.2d 657 [4th Dept. 1994] ).
Contrary to the father's contention in appeal No. 2, DSS established by clear and convincing evidence that the father committed the crime of criminal sexual act in the first degree against his daughter ( Penal Law § 130.50 [3] ) and thereby established that the child is severely abused (see Matter of Brooke T. [Justin T.] , 156 A.D.3d 1410, 1411, 67 N.Y.S.3d 377 [4th Dept. 2017] ; Matter of Chelsey B. [Michael W.] , 89 A.D.3d 1499, 1499-1500, 932 N.Y.S.2d 744 [4th Dept. 2011], lv denied 18 N.Y.3d 807, 2012 WL 489772 [2012] ; see also Family Ct Act §§ 1046 [b] [ii] ; 1051 [e]; Social Services Law § 384-b [8] [d] ). Contrary to the father's further contention in appeal No. 2, the child's out-of-court statements were sufficiently corroborated by, inter alia, the consistency of the child's account that the father touched and made oral contact with her genitals, as well as witness testimony that the child engaged in identical behaviors that she had attributed to the father and that the child engaged in age-inappropriate sexual behavior with other children. In addition, a caseworker for child protective services (CPS) testified that she found the child's account credible because the child could give specific details of the abuse and where it occurred and because the child's sexual and aggressive behaviors were consistent with behaviors seen in children proven to have been sexually abused. There was also testimony from the mother that the child reacted vocally and negatively when a physician sought to touch her genitals when examining the child for a urinary tract infection. Inasmuch as the degree of corroboration required to establish the reliability of the child's out-of-court statements is low (see Matter of East v. Giles , 134 A.D.3d 1409, 1411, 23 N.Y.S.3d 502 [4th Dept. 2015] ), and as Family Court judges have "considerable discretion" in determining whether the child's statements have been reliably corroborated ( Matter of Nicole V. , 71 N.Y.2d 112, 119, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987], rearg denied 71 N.Y.2d 890, 527 N.Y.S.2d 772, 522 N.E.2d 1070 [1988] ), we conclude that the above evidence constituted sufficient corroboration (see Family Ct Act § 1046 [a] [vi] ; Brooke T. , 156 A.D.3d at 1411, 67 N.Y.S.3d 377 ; Matter of Nicholas J.R. [Jamie L.R.] , 83 A.D.3d 1490, 1490-1491, 922 N.Y.S.2d 679 [4th Dept. 2011], lv denied 17 N.Y.3d 708, 2011 WL 4028757 [2011] ; Matter of Breanna R. , 61 A.D.3d 1338, 1340, 876 N.Y.S.2d 829 [4th Dept. 2009] ). Because Family Court's finding is supported by the record, we see no reason to disturb it (see Brooke T. , 156 A.D.3d at 1411, 67 N.Y.S.3d 377 ; Chelsey B. , 89 A.D.3d at 1500, 932 N.Y.S.2d 744 ).
We agree with the father's contention in appeal No. 3, however, that DSS had no standing to bring a petition to terminate his parental rights pursuant to Social Services Law § 384-b and that the court had no jurisdiction to entertain it. That statute applies to destitute or dependent children in situations where termination of parental rights will free them for adoption ( § 384-b [1] [b] ; [3] [a]; [10] ). The child herein is neither a destitute nor a dependent child within the meaning of the Social Services Law (see § 371 [3], [7] ), and there is no indication in the record that an adoption was planned for the child (see Matter of Anastasia I. [Svetlana T.–Aaron M.I.] , 118 A.D.3d 1480, 1481, 989 N.Y.S.2d 204 [4th Dept. 2014] ; Matter of Cadence SS. [Amy RR.–Joshua SS.] , 103 A.D.3d 126, 128-129, 956 N.Y.S.2d 639 [3d Dept. 2012], lv denied 21 N.Y.3d 853, 2013 WL 1800520 [2013] ; Matter of Lucinda G. , 122 Misc. 2d 416, 417, 422, 471 N.Y.S.2d 736 [Fam. Ct., Delaware County 1983] ; see also Matter of Julian P. [Melissa P.–Zachary L.] , 106 A.D.3d 1383, 1384, 966 N.Y.S.2d 563 [3d Dept. 2013] ). Indeed, at the first appearance of this matter, the court granted temporary full custody to the mother with the consent of DSS and did not thereafter make any other custody order. We reject the position of DSS, adopted by the court, that a directive in the order in appeal No. 2, by which the court released the child into the custody of the mother pursuant to Family Court Act § 1054 (see § 1052 [a] [ii] ), rendered the termination proceeding authorized by Social Services Law § 384-b applicable to the child and the father. On the basis of the above analysis, we reverse the order in appeal No. 3 and dismiss the petition seeking termination of the father's parental rights to the child.
The father's contentions in appeal No. 3 that he was deprived of due process and meaningful representation because he appeared only by telephone during the termination proceeding have been rendered moot by our reversal of the order in appeal No. 3 and dismissal of the petition granted in that order. To the extent that the father's claim of ineffective assistance of counsel survives with respect to certain CPS reports dealing with the mother, we conclude that the father failed to "demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings" ( Matter of Brandon v. King , 137 A.D.3d 1727, 1729, 28 N.Y.S.3d 757 [4th Dept. 2016], lv denied 27 N.Y.3d 910, 2016 WL 3524319 [2016] [internal quotation marks omitted]; see People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).
Entered: October 9, 2020
Mark W. Bennett
Clerk of the Court