Opinion
2015-05-27
In the Matter of ANDREA V. (Anonymous). Administration for Children's Services, respondent; James A. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Kassandra A. (Anonymous). Administration for Children's Services, respondent; James A. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Jaime A. (Anonymous). Administration for Children's Services, respondent; James A. (Anonymous), appellant. (Proceeding No. 3).
Cheryl Charles–Duval, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Diana Lawless of counsel), for respondent.
Cheryl Charles–Duval, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Diana Lawless of counsel), for respondent.
Amy L. Colvin, Huntington, N.Y. (Neal Futerfas of counsel), attorney for the child Andrea V.
Anthony DeGuerre, Staten Island, N.Y., attorney for the child Kassandra A.
Angela Conti, Staten Island, N.Y., attorney for the child Jaime A.
RANDALL T. ENG, P.J., L. PRISCILLA HALL, JEFFREY A. COHEN, and BETSY BARROS, JJ.
Appeals from three orders of fact-finding and disposition and three orders of protection of the Family Court, Richmond County (Arnold Lim, J.), all dated January 29, 2014. The first order of fact-finding and disposition, inter alia, after a fact-finding hearing, found that James A. abused the child Andrea V. The second and third orders of fact-finding and disposition, among other things, after the fact-finding hearing, found that James A. derivatively abused the children Kassandra A. and Jaime A., respectively. The first order of protection directed James A., inter alia, to stay away from the child Andrea V. until and including April 1, 2019. The second and third orders of protection directed James A., inter alia, to refrain from harassing the children Kassandra A. and Jaime A., respectively, until and including January 29, 2015.
ORDERED that the appeals from the second and third orders of protection are dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the orders of fact-finding and disposition are affirmed, without costs or disbursements; and it is further,
ORDERED that the first order of protection is affirmed, without costs and disbursements.
The second and third orders of protection, relating to the children Kassandra A. and Jaime A., respectively, expired by their own terms on January 29, 2015, and the determination of the appeals from these orders of protection would, under the facts of this case, have no direct effect upon the parties ( see Matter of Melody H. [Dwayne H.], 121 A.D.3d 686, 993 N.Y.S.2d 340). Accordingly, the appeals from the second and third orders of protection must be dismissed as academic.
The Family Court's determination that the appellant sexually abused the child Andrea V. is supported by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b]; Matter of Nicole V., 71 N.Y.2d 112, 117, 524 N.Y.S.2d 19, 518 N.E.2d 914; Matter of Michael U. [Marcus U.], 110 A.D.3d 821, 973 N.Y.S.2d 676). In light of the conflicting testimony presented at the fact-finding hearing, the factual findings of the Family Court turned largely on its assessment of the witnesses' credibility, which is entitled to great weight ( see Matter of Michael U. [Marcus U.], 110 A.D.3d 821, 973 N.Y.S.2d 676; Matter of Trenasia J. [Frank J.], 107 A.D.3d 992, 966 N.Y.S.2d 875, affd. 25 N.Y.3d 1001 ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2015]; Matter of Candace S., 38 A.D.3d 786, 832 N.Y.S.2d 612; Matter of Sylvia J., 23 A.D.3d 560, 804 N.Y.S.2d 783). Because the inconsistencies between Andrea V.'s hearing testimony and her prior unsworn out-of-court statements describing the abuse were minor, it cannot be said that Family Court erred in crediting her testimony. Because the record provides a sound and substantial basis for the court's determination, we find no basis to disturb it ( see Matter of Victoria P. [Victor P.], 121 A.D.3d 1006, 1007, 994 N.Y.S.2d 409; Matter of Amparo B.T. [Carlos B.E.], 118 A.D.3d 809, 987 N.Y.S.2d 199).
The Family Court's determination that the appellant sexually abused the child Andrea V. supported the court's determination that he derivatively abused the children Kassandra A. and Jaime A., since his conduct established a fundamental defect in his understanding of his parental duties relating to the care of children and demonstrated that his impulse control was so defective as to create a substantial risk of harm to any child in his care ( see Matter of Ebony S. [Earlind G.], 123 A.D.3d 1136, 997 N.Y.S.2d 640; Matter of Michael U. [Marcus U.], 110 A.D.3d at 821–822, 973 N.Y.S.2d 676; Matter of Angelica M. [Nugene A.], 107 A.D.3d 803, 967 N.Y.S.2d 740; Matter of Kyanna T. [Winston R.], 99 A.D.3d 1011, 953 N.Y.S.2d 121; Matter of Aliyah G. [Arlenie G.], 95 A.D.3d 885, 886, 942 N.Y.S.2d 903).