Opinion
2015-05-06
In the Matter of KHALIL L. (Anonymous). Westchester County Department of Social Services, appellant-respondent; Richard L. (Anonymous), respondent-appellant. (Proceeding No. 1) In the Matter of Kaiden L. (Anonymous). Westchester County Department of Social Services, appellant-respondent; Richard L. (Anonymous), respondent-appellant. (Proceeding No. 2).
Robert F. Meehan, County Attorney, White Plains, N.Y. (James Castro–Blanco and Thomas G. Gardiner of counsel), for appellant-respondent. Stephen Kolnick, Yonkers, N.Y., for respondent-appellant.
Robert F. Meehan, County Attorney, White Plains, N.Y. (James Castro–Blanco and Thomas G. Gardiner of counsel), for appellant-respondent. Stephen Kolnick, Yonkers, N.Y., for respondent-appellant.
Lisa F. Colin, White Plains, N.Y., attorney for the children.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Appeal and cross-appeal from an order of the Family Court, Westchester County (Hal B. Greenwald, J.), entered November 13, 2013, and appeals from (1) an order of that court entered December 4, 2013, and (2) an order of disposition of that court entered January 24, 2014. The order entered November 13, 2013, granted those branches of the petitioner's motion which were for summary judgment on its petitions alleging that the father abused the child Khalil L. and derivatively neglected the child Kaiden L., and, in effect, denied that branch of the petitioner's motion which was for summary judgment on its petition alleging that the father derivatively abused the child Kaiden L. The order entered December 4, 2013, granted the petitioner's motion for a finding that reasonable efforts were not required to be made to reunify the father with the child Kaiden L. The order of disposition directed the father to comply with the terms and conditions specified in an order of protection issued against him on behalf of the child Kaiden L.
ORDERED that the order entered November 13, 2013, is modified, on the law, by deleting the provision thereof, in effect, denying that branch of the petitioner's motion which was for summary judgment on the issue of the father's derivative abuse of the child Kaiden L., and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,
ORDERED that the order entered December 4, 2014, and the order of disposition entered January 24, 2014, are affirmed, without costs or disbursements.
The petitioner established, prima facie, that the father abused Khalil L. and derivatively neglected and abused Kaiden L. by demonstrating that the father was convicted of manslaughter in the first degree in connection with allegations concerning the death of Khalil L., who is Kaiden L.'s brother. This act “established a fundamental defect in the father's 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' ” (Matter of Adriel R. [David P.], 117 A.D.3d 744, 745, 985 N.Y.S.2d 592; quoting Matter of Angelica M. [Nugene A.], 107 A.D.3d 803, 804–805, 967 N.Y.S.2d 740). In opposition to the petitioner's prima facie showing, the father failed to raise a triable issue of fact.
Specifically, despite his contentions to the contrary, the father failed to raise a triable issue of fact on the issue of whether he had a full and fair opportunity to litigate the criminal matter resulting in his conviction of manslaughter in the first degree for the death of Khalil L. It is immaterial that the father has taken an appeal from his criminal conviction, since the determinative issue is whether the father had “a full and fair opportunity to litigate his conduct during the course of his criminal trial” (Matter of Tavianna CC. [Maceo CC.], 99 A.D.3d 1132, 1134, 952 N.Y.S.2d 804; see Matter of Gowrie v. Squires, 71 A.D.3d 1023, 898 N.Y.S.2d 57), not whether he has exhausted every avenue of appeal from his conviction. The father's remaining contentions pertaining to the derivative abuse of Kaiden L. are without merit. Therefore, the Family Court properly granted that branch of the petitioner's motion which was for summary judgment on its petition alleging that the father abused Khalil L., and should have granted that branch of the petitioner's motion which was for summary judgment on its petition alleging that the father derivatively abused Kaiden L.
The father's remaining contentions are without merit.