Admin. for Children's Servs. v. Moshe W. (In re Osher W.)

198 A.D.3d 904

156 N.Y.S.3d 319

In the MATTER OF OSHER W. (Anonymous).

Administration for Children's Services, respondent;

v.Moshe W. (Anonymous), appellant.

(Proceeding No. 1)

In the Matter of Rifky W. (Anonymous).

Administration for Children's Services, respondent;

v.Moshe W. (Anonymous), appellant.

(Proceeding No. 2)

In the Matter of Yosef W. (Anonymous).

Administration for Children's Services, respondent;

v.Moshe W. (Anonymous), appellant.

(Proceeding No. 3)

In the Matter of Elimelech W. (Anonymous).

Administration for Children's Services, respondent;

v.Moshe W. (Anonymous), appellant.

(Proceeding No. 4)

2020–00163, 2020–00440

Docket Nos. NA–14641–16, NA–14642–16, NA–14643–16, NA–14644–16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 21, 2021

October 20, 2021

Jennifer Arditi, Maspeth, NY, for appellant.

Georgia M. Pestana, Corporation Counsel, New York, N.Y. (Melanie T. West and Julia Bedell of counsel), for respondent.

Louisa Floyd, Brooklyn, NY, attorney for the child Osher W.

Seth Myles, Brooklyn, NY, attorney for the child Rifky W.

Catherine S. Bridge, Staten Island, NY, attorney for the children Yosef W. and Elimelech W.

MARK C. DILLON, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the father appeals from (1) an order of disposition of the Family Court, Kings County (Ilana Gruebel, J.), dated April 17, 2019, and (2) an order of disposition of the same court dated December 17, 2019. The first order of disposition, upon an order of fact-finding of the same court dated June 12, 2018, made after a fact-finding hearing, finding, inter alia, that the father sexually abused the child Osher W. and derivatively abused the children Rifky W., Yosef W., and Elimelech W., and, after a dispositional hearing, inter alia, placed the child Osher W. in the custody of the Commissioner of Social Services under the supervision of a foster care agency until the completion of the next permanency hearing, on November 21, 2019, and placed the father under the supervision of a child protective agency, social services official, or duly authorized agency until the completion of the next permanency hearing, on November 21, 2019. The second order of disposition, upon the same order of fact-finding and after a dispositional hearing, among other things, released Yosef W. and Elimelech W. to the care of the nonrespondent mother under the supervision of the Administration for Children's Services for a period of 12 months, with certain terms and conditions imposed on the father.

ORDERED that the appeal from so much of the first order of disposition as placed Osher W. in the custody of the Commissioner of Social Services under the supervision of a foster care agency until the next permanency hearing, on November 21, 2019, and placed the father under the supervision of a child protective agency, social services official, or duly authorized agency, until the completion of the next permanency hearing, on November 21, 2019, is dismissed, without costs or disbursements; and it is further,

ORDERED that the appeal from so much of the second order of disposition as released Yosef W. and Elimelech W. to the care of the nonrespondent mother under the supervision of the Administration for Children's Services for a period of 12 months is dismissed, without costs or disbursements; and it is further,

ORDERED that the orders of disposition are affirmed insofar as reviewed, without costs or disbursements.

The appeals from so much of the orders of disposition as placed Osher W. in the custody of the Commissioner of Social Services under the supervision of a foster care agency until the next permanency hearing, on November 21, 2019; placed the father under the supervision of a child protective agency, social services official, or duly authorized agency, until the completion of the next permanency hearing, on November 21, 2019; and released Yosef W. and Elimelech W. to the care of the nonrespondent mother under the supervision of the Administration for Children's Services (hereinafter ACS) for a period of 12 months, must be dismissed as academic, as those portions of the orders have expired (see Matter of Sha–Naya M.S.C. [Derrick C.], 130 A.D.3d 719, 720, 13 N.Y.S.3d 502 ).

The Family Court's finding that the father sexually abused his son Osher W. is supported by a preponderance of the evidence (see Family Ct Act §§ 1012[e][iii][A] ; 1046[b][i]; Penal Law §§ 130.52, 130.60 ). The evidence presented at the fact-finding hearing established that, in approximately 2003, when Osher was approximately four years old, he told his maternal grandmother that the father had made Osher touch the father's penis and that a "white thing" came out. Osher's grandmother did not report this incident to the police. She explained at the fact-finding hearing that, in the Hasidic community, it was considered "not proper" to do so. She chose, instead, to refer the matter to a "Rabbinical Court." The father, according to his hearing testimony, become aware of a "ruling" by that court when Osher was approximately six years old. He claimed not to know the substance of the ruling, and denied participating in the process that led to its issuance. But he acknowledged that, because of the ruling, he had limited contact with Osher for approximately a decade.

In the fall of 2015, when Osher was 16, he stayed at his father and stepmother's house for approximately a month during the Jewish high holidays. Several weeks later, in December, while visiting his maternal grandmother, Osher disclosed that the father had again sexually abused him. He said that, at night, the father came to the room upstairs where Osher was sleeping, "laid himself on top of [Osher] and started playing with ... [Osher's] private parts." This happened more than once, Osher told his grandmother. During one of the incidents, one of Osher's half-brothers, Elimelech W., came upstairs, but quickly left.

In May 2016, ACS began an investigation into these...