Suffolk Cty. Dep't of Soc. Serv. v. Robert J. (In re Ashlyn M.)

214 N.Y.S.3d 138

228 A.D.3d 939

In the MATTER OF ASHLYN M. (Anonymous).

Suffolk County Department of Social Services, respondent;

v.Robert J. (Anonymous), appellant. (Proceeding No. 1)

In the Matter of Jordan M. (Anonymous).

Suffolk County Department of Social Services, respondent;

v.Robert J, (Anonymous), appellant. (Proceeding No. 2)

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

Argued—June 6, 2024

June 26, 2024

Barket Epstein Kearon Aldea & Loturco, LLP, Garden City, NY (Donna Aldea and Matthew Keller of counsel), for appellant.

Christopher J. Clayton, County Attorney, Central Islip, NY (Alex Berkman of counsel), for respondent.

Mary A. Toner, Central Islip, NY, attorney for the child Ashlyn M.

Laurette D. Mulry, Central Islip N.Y. (John B. Belmonte of counsel), attorney for the child Jordan M.

COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, PAUL WOOTEN, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the father appeals from (1) an order of fact-finding of the Family Court, Suffolk County (Caren Loguercio, J.), dated June 23, 2023, and (2) an order of fact-finding and disposition of the same court dated September 11, 2023. The order of fact-finding, after a fact-finding hearing, found that the father abused the child Ashlyn M. and derivatively neglected the child Jordan M. The order of fact-finding and disposition, upon the order of fact-finding and after a dispositional hearing, found that the father abused the child Ashlyn M. and derivatively neglected the child Jordan M., released the subject children to the custody of the nonrespondent mother under the supervision of the petitioner for a period of one year, placed the father under the supervision of the petitioner for a period of one year, and directed the father to comply with certain terms and conditions.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of fact-finding and disposition and is brought up for review on the appeal from the order of fact-finding and disposition (see Matter of Alexander S. [Gabriel H.], 224 A.D.3d 907, 908, 206 N.Y.S.3d 341); and it is further,

ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.

The petitioner commenced these related proceedings pursuant to Family Court Act article 10, alleging, inter alia, that the father sexually abused the child Ashlyn M. and derivatively neglected the child Jordan M. based on the abuse of Ashlyn M. After a fact-finding hearing, the Family Court found that the father sexually abused Ashlyn M. and derivatively neglected Jordan M. Thereafter, the court, following a dispositional hearing, released the children to the custody of the nonrespondent mother under the supervision of the petitioner for a period of one year, placed the father under the supervision of the petitioner for the same period of time, and directed the father to comply with certain terms and conditions, including participation in a sex offender treatment program. The father appeals.

[1–3] "At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected" (Matter of Ciniya P. [Omar S.W.], 217 A.D.3d 954, 955, 192 N.Y.S.3d 219, citing Family Ct Act § 1046[b][i]). "Great deference is given to the Family Court’s credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear the testimony, and observe their demeanor" (Matter of Amberlyn H.P. [Jose H.C.], 187 A.D.3d 920, 920, 130 N.Y.S.3d 368 [internal quotation marks omitted]). "Where, as here, there is conflicting testimony and the matter turns upon the assessment of the credibility of witnesses, the factual findings of the hearing court must be accorded great weight" (Matter of Lauryn H. [William A.], 73 A.D.3d 1175, 1176, 900 N.Y.S.2d 764 [internal quotation marks omitted]). Moreover, "[t]he Family Court Act defines an abused child as, inter alia, a child whose parent commits against him or her a sex offense as defined in article 130 of the Penal Law" (Matter of Vered L. [Yoshi S.], 205 A.D.3d 1028, 1029, 166 N.Y.S.3d 891, citing Family Ct Act § 1012[e][iii][A]). "Sexual contact is defined under the Penal Law as ‘any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party’ " (Matter of M.W. [Mohammad W.], 172 A.D.3d 879, 880,100 N.Y.S.3d 287, quoting Penal Law § 130.00[3]). "The intent to receive sexual gratification may be inferred from the nature of the acts committed and the circumstances in which they occurred" (Matter of Vered L. [Yoshi S.], 205 A.D.3d at 1030, 166 N.Y.S.3d 891 [internal quotation marks omitted]).

[4] Here, the Family Court’s finding that the father sexually abused Ashlyn M. and derivatively neglected Jordan M. was supported by a preponderance of the evidence (see Matter of Nevaeh L.-B. [Marcus B.], 178 A.D.3d 706, 707, 111 N.Y.S.3d 233; Matter of D.S. [Shaqueina W.], 147 A.D.3d 856, 857, 47 N.Y.S.3d 364). Ashlyn M.’s "hearing testimony established that the father sexually abused her within the meaning of Family Court Act § 1012(e)(iii)(A)" (Matter of M.W. [Mohammad W.], 172 A.D.3d at 881, 100 N.Y.S.3d 287). Based on the totality of the circumstances, the court appropriately inferred...