Opinion
1149A, 1149, 1148.
05-17-2016
In re NADIYA MARIE S., and Another, Children Under the Age of Eighteen Years, etc., Virgilio David O., Respondent–Appellant, Kimberly F., Respondent, Administration for Children's Services, Petitioner–Respondent.
Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Opinion Order of disposition, Family Court, Bronx County (Alma M. Gomez, J.), entered on or about April 21, 2015, to the extent it brings up for review a fact-finding order, same court (Erik S. Pitchal, J.), entered on or about February 20, 2015, which found that respondent Virgilio David O. (respondent) had abused the subject children, unanimously affirmed, without costs. Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition. Appeal from orders of protection, same court (Alma M. Gomez, J.), entered on or about April 21, 2015, unanimously dismissed, without costs, as abandoned.
The record supports Family Court's determination that when the sexual abuse occurred, respondent was a person legally responsible for the children's care; therefore, the finding of abuse against him is sustainable (see Family Ct. Act § 1012[a], [e][iii] ; [g]; Matter of Yolanda D., 88 N.Y.2d 790, 796, 651 N.Y.S.2d 1, 673 N.E.2d 1228 [1996] ; Matter of Keoni Daquan A. [Brandon W.—April A.], 91 A.D.3d 414, 415, 937 N.Y.S.2d 160 [1st Dept.2012] ). The discussion in the fact-finding order that respondent had severely abused the children is tantamount to dicta, because Family Court ultimately determined that respondent had abused the children pursuant to Family Court Act § 1012. MAZZARELLI, J.P., MOSKOWITZ, MANZANET–DANIELS, GESMER, JJ., concur.