Opinion
2014-08-6
In the Matter of JAMEL T. (Anonymous). Administration for Children's Services, petitioner-respondent; Gemayel T. (Anonymous), appellant; et al., respondents. (Proceeding No. 1) In the Matter of Anaya H. (Anonymous). Administration for Children's Services, petitioner-respondent; Gemayel T. (Anonymous), appellant; et al., respondents. (Proceeding No. 2).
Edward E. Caesar, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Benjamin Welikson of counsel), for petitioner-respondent.
Edward E. Caesar, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Benjamin Welikson of counsel), for petitioner-respondent.
Robert Marinelli, New York, N.Y., attorney for the child Jamel T.
Frank A. Buono, Staten Island, N.Y., attorney for the child Anaya H.
In two related child neglect proceedings pursuant to Family Court Act article 10, Gemayel T. appeals (1) from an order of fact-finding of the Family Court, Kings County (White, J.), dated March 29, 2012, which, after a fact-finding hearing, found that he derivatively neglected the subject children, and (2), an order of disposition of the same court dated March 1, 2013, which, upon the order of fact-finding and after a dispositional hearing, placed the subject children in the custody of the Commissioner of Social Services of the City of New York through 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ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,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 placed the subject children in the custody of the Commissioner of Social Services of the City of New York through the next permanency hearing is dismissed as academic, as that permanency hearing has already been conducted ( see Matter of Diamonte O. [Tiffany R.], 116 A.D.3d 866, 983 N.Y.S.2d 441); and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
Contrary to the appellant's contention, the allegations that he abused or neglected a child who was not the subject of these proceedings may form the basis of a finding that he derivatively neglected the children who are the subject of these proceedings ( see Family Ct. Act § 1012[f][i]; Matter of Kennedie M. [Kimberly M.], 89 A.D.3d 1544, 934 N.Y.S.2d 278;Matter of Kole HH., 61 A.D.3d 1049, 1053, 876 N.Y.S.2d 199;Matter of Ian H., 42 A.D.3d 701, 840 N.Y.S.2d 202). Further, the Family Court's determination to accept as credible the testimony of the nonsubject child that, in July 2010, the appellant had inappropriate sexual contact with her, and to reject as not credible the appellant's testimony that he did not engage in inappropriate sexual contact with the nonsubject child, is entitled to deference and is accorded great weight ( see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337;Matter of Kyanna T. [Winston R.], 99 A.D.3d 1011, 1013, 953 N.Y.S.2d 121;Matter of Candacy C. [Clairmonte C.], 96 A.D.3d 836, 837, 946 N.Y.S.2d 250;Matter of Taylor T. [Darren T.], 73 A.D.3d 1075, 902 N.Y.S.2d 122;Matter of Cassandra C., 300 A.D.2d 303, 750 N.Y.S.2d 322). The appellant's conduct toward the nonsubject child, as well as his regular drug use, was sufficiently proximate in time to the birth of the two subject children to demonstrate, by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i] ), that the appellant derivatively neglected the two subject children ( seeFamily Ct. Act § 1012[f][i]; Matter of Chanel T. [Guillaume T.], 104 A.D.3d 953, 961 N.Y.S.2d 574;Matter of Kylani R. [Kyreem B.], 93 A.D.3d 556, 557, 941 N.Y.S.2d 46;Matter of Jamarra S. [Jessica S.], 85 A.D.3d 803, 804, 925 N.Y.S.2d 531;Matter of Amber C., 38 A.D.3d 538, 541, 831 N.Y.S.2d 478;Matter of Baby Boy W., 283 A.D.2d 584, 585, 724 N.Y.S.2d 494).
The appellant's remaining contentions are without merit. MASTRO, J.P., CHAMBERS, LOTT and ROMAN, JJ., concur.