Opinion
183 CAF 19-01743
03-18-2022
In the MATTER OF JULIETTE R. Erie County Department of Social Services, Petitioner-Respondent; v. Jordan R.T., Respondent-Appellant. (Appeal No. 2.)
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-APPELLANT. REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT. AUDREY ROSE HERMAN, BUFFALO, ATTORNEY FOR THE CHILD.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-APPELLANT.
REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT.
AUDREY ROSE HERMAN, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal insofar as it concerns the disposition is unanimously dismissed and the order is affirmed without costs. Memorandum: In appeal No. 1, respondent father appeals from an order entered after a fact-finding hearing that, inter alia, adjudicated that he neglected the subject child. In appeal No. 2, the father appeals from an order of disposition that, among other things, placed the father under the supervision of petitioner for one year and released the child to the custody of non-respondent mother.
As an initial matter, the father's appeal from the order in appeal No. 1 must be dismissed inasmuch as the appeal from the dispositional order in appeal No. 2 brings up for review the propriety of the fact-finding order in appeal No. 1 (see Matter of Lil B. J.-Z. [Jessica N.J.] [appeal No. 2], 194 A.D.3d 1413, 1413-1414, 143 N.Y.S.3d 631 [4th Dept. 2021] ; Matter of Jaime D. [James N.] [appeal No. 2], 170 A.D.3d 1524, 1525, 94 N.Y.S.3d 535 [4th Dept. 2019], lv denied 34 N.Y.3d 901, 2019 WL 5382260 [2019] ). Further, the father's appeal from the order in appeal No. 2 insofar as it concerns the disposition must be dismissed as moot because that part of the order has expired by its terms (see Lil B. J.-Z. , 194 A.D.3d at 1414, 143 N.Y.S.3d 631 ; Jaime D. , 170 A.D.3d at 1525, 94 N.Y.S.3d 535 ; Matter of Gabriella G. [Jeannine G.] , 104 A.D.3d 1136, 1136, 962 N.Y.S.2d 537 [4th Dept. 2013] ). The father "may nevertheless challenge the underlying neglect adjudication because it constitutes a permanent stigma to a parent and may, in future proceedings, affect a parent's status" ( Jaime D. , 170 A.D.3d at 1525, 94 N.Y.S.3d 535 [internal quotation marks omitted]).
Contrary to the father's contention with respect to the neglect adjudication, we conclude that petitioner established by a preponderance of the evidence that the child's physical, mental or emotional condition had been or was "in imminent danger of becoming impaired as a result of the failure of [the father] ... to exercise a minimum degree of care" ( Family Ct Act § 1012 [f] [i] ; see generally Matter of Afton C. [James C.] , 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 [2011] ; Nicholson v. Scoppetta , 3 N.Y.3d 357, 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ). Petitioner established that the father "made repeated unfounded allegations of sexual [and physical] abuse ..., necessitating that the child[ ] undergo medical examinations and interviews regarding intimate issues" ( Matter of Tyler W. [Janice B.] , 149 A.D.3d 968, 969, 52 N.Y.S.3d 405 [2d Dept. 2017] ; see Matter of Leilani D. [Linsford D.] , 190 A.D.3d 478, 478, 135 N.Y.S.3d 812 [1st Dept. 2021] ; Matter of Elizabeth W. [Theresa W.] , 74 A.D.3d 1787, 1788, 902 N.Y.S.2d 472 [4th Dept. 2010], lv denied 16 N.Y.3d 704, 2011 WL 501331 [2011] ; Matter of Morgan P. , 60 A.D.3d 1362, 1362, 875 N.Y.S.2d 401 [4th Dept. 2009] ) and that the father inappropriately questioned the child about the alleged abuse (see Tyler W. , 149 A.D.3d at 969, 52 N.Y.S.3d 405 ).