Admin. for Children's Servs. v. Winifred A. (In re Naphtali A.)
| Decision Date | 10 October 2018 |
| Docket Number | 2017–04325,Docket Nos. N–27271–15, N–27272–15, N–27273–15, N–27274–15, N–27275–15, N–27276–15,2017–04320,2017–04323 |
| Citation | 165 A.D.3d 781,85 N.Y.S.3d 512 |
| Parties | In the MATTER OF NAPHTALI A. (Anonymous). Administration for Children's Services, respondent; v. Winifred A. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Yahchannah A. (Anonymous). Administration for Children's Services, respondent; v. Winifred A. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Noah A. (Anonymous). Administration for Children's Services, respondent; v. Winifred A. (Anonymous), appellant. (Proceeding No. 3) In the Matter of Samach A. (Anonymous). Administration for Children's Services, respondent; v. Winifred A. (Anonymous), appellant. (Proceeding No. 4) In the Matter of Nathanael A. (Anonymous). Administration for Children's Services, respondent; v. Winifred A. (Anonymous), appellant. (Proceeding No. 5) In the Matter of Asher A. (Anonymous). Administration for Children's Services, respondent; v. Winifred A. (Anonymous), appellant. (Proceeding No. 6) |
| Court | New York Supreme Court — Appellate Division |
Carol Lipton, Brooklyn, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Elizabeth I. Freedman of counsel), for respondent.
Steven P. Forbes, Jamaica, NY, for the children Napthali A., Noah A., and Asher A.
The Legal Aid Society, New York, N.Y. (Dawne A. Mitchell and Diane Pazar of counsel), for the child Yahchannah A.
Joel Borenstein, Brooklyn, NY, for the child Samach A.
Zvi Ostrin, New York, NY, for the child Nathanael A.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 10, the father appeals from (1) a decision of the Family Court, Kings County (Ilana Gruebel, J.), dated January 23, 2017, (2) an order of fact-finding of the same court dated March 20, 2017, and (3) an order of disposition of the same court, also dated March 20, 2017. The order of fact-finding, upon the decision, found that the father, Winifred A., sexually abused and neglected the child Yahchannah A., and derivatively abused and neglected the children Naphtali A., Noah A., Samach A., Nathanael A., and Asher A. The order of disposition, upon the order of fact-finding and after a dispositionalhearing, inter alia, upon consent, released the children Naphtali A., Noah A., Samach A., Nathanael A., and Asher A. to the custody of their nonrespondent mothers and the father with supervision of the father for a period of 12 months.
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
In October 2015, the Administration for Children's Services (hereinafter ACS) commenced these proceedings pursuant to article 10 of the Family Court Act, alleging that the father had sexually abused and neglected the child Yahchannah A., and derivatively abused and neglected the children Naphtali A., Noah A., Samach A., Nathanael A., and Asher A. At a fact-finding hearing, Yahchannah A. testified that, from the age of 5 through the age of 17, the father inserted his fingers into her vagina, performed oral sex on her, made her perform oral sex on him, and had vaginal and anal sex with her. Yahchannah A. also testified that the father stopped providing food and financial support for her in 2015. She additionally testified that she resided in the basement of the father's home, the basement was only partially lit, the refrigerator worked only sporadically, and the ceiling had partially collapsed in the bathroom, preventing her from using the bathtub. The evidence at the fact-finding hearing established that the children Noah A., Naphtali A., Asher A., and Nathaniel A. lived on the first floor of the father's house with their mother, and the child Samach A. lived on the third floor of the father's house with his mother. The father, inter alia, denied all allegations of abuse and neglect. After the fact-finding hearing, the Family Court determined that ACS had proven by a preponderance of the evidence that the father had abused and neglected Yahchannah A. and had derivatively abused and neglected the other children. After a dispositional hearing, among other things, the parties agreed that the children Naphtali A., Noah A., Samach A., Nathanael A., and Asher A., would be released to the custody of their respective mothers and the father with supervision of the father by ACS for a period of 12 months.
The appeal from so much of the order of disposition as released the children Naphtali A., Noah A., Samach A., Nathanael A. and Asher A., upon consent, to the custody of their mothers and the father with supervision of the father for a period of 12 months must be dismissed, as no appeal lies from an order entered upon the consent of the appealing party (see Matter of Eunice D. [James F.D.], 111 A.D.3d 627, 628, 975 N.Y.S.2d 73 ; Matter of Brian R., 48 A.D.3d 576, 577, 852 N.Y.S.2d 235 ). In any event, that portion of the order of disposition has been rendered academic, as it has expired by its own terms (see Matter ofChristopher D.B. [Lorraine H.], 157 A.D.3d 944, 948, 69 N.Y.S.3d 719 ; Matter of Chaim R.[Keturah Ponce R.], 94 A.D.3d 1127, 1129, 943 N.Y.S.2d 195 ). However, since an adjudication of abuse or neglect constitutes a permanent and significant stigma which might indirectly affect the father's status in future proceedings, the appeal from so much of the order of disposition as brings up for review the findings of derivative abuse and neglect set forth in the order of fact-finding is not academic (see Matter ofBaby Boy D. [Adanna C.], 144 A.D.3d 1026, 1027, 43 N.Y.S.3d 367 ; Matter of Eunice D. [James F.D.], 111 A.D.3d at 628, 975 N.Y.S.2d 73 ).
The Family Court's finding that the father...
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