Burke H. Erie Cnty. Dep't of Soc. Servs. v.

• Decision Date: 02 May 2014
• Citation: 985 N.Y.S.2d 367,117 A.D.3d 1455,2014 N.Y. Slip Op. 03078
• Parties: In the Matter of BURKE H. Erie County Department of Social Services, Petitioner–Respondent; Richard H., Respondent–Appellant, and Tiffany H., Respondent.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1455

985 N.Y.S.2d 367

2014 N.Y. Slip Op. 03078

In the Matter of BURKE H. Erie County Department of Social Services, Petitioner–Respondent; Richard H., Respondent–Appellant, and Tiffany H., Respondent.

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

May 2, 2014.

Denis A. Kitchen, Williamsville, for Respondent–Appellant.

Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.

David C. Schopp, Attorney for the Child, the Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY AND VALENTINO, JJ.

MEMORANDUM:

In this proceeding pursuant to Family Court Act article 10, respondent father appeals from an order adjudicating the subject child to be neglected by him. Contrary to the father's contention, Family Court's finding of derivative neglect is supported by a preponderance of the evidence ( see Matter of Arianna M. [Brian M.], 105 A.D.3d 1401, 1401, 963 N.Y.S.2d 895,lv. denied21 N.Y.3d 862, 2013 WL 4516332). Petitioner established that the father failed to address the problems that led to the findings of neglect with respect to his other three children ( see Matter of Krystal J., 267 A.D.2d 1097, 1098, 700 N.Y.S.2d 340), and we conclude that the evidence with respect to those children “demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [his] care” (Matter of Daniella HH., 236 A.D.2d 715, 716, 654 N.Y.S.2d 200;see Matter of Majerae T. [Crystal T.], 74 A.D.3d 1784, 1785, 902 N.Y.S.2d 758). Contrary to the father's further contention, the court properly drew “ ‘the strongest possible negative inference’ against [him] after he failed to testify at the fact-finding hearing” (Matter of Kennedie M. [Douglas M.], 89 A.D.3d 1544, 1545, 934 N.Y.S.2d 278,lv. denied18 N.Y.3d 808, 2012 WL 539274;see Matter of Jayden B. [Erica R.], 91 A.D.3d 1344, 1345, 938 N.Y.S.2d 692;Matter of Serenity P. [Shameka P.], 74 A.D.3d 1855, 1855, 902 N.Y.S.2d 741).

Finally, we reject the father's contention that the court accorded too much weight to a psychological evaluation conducted several years prior to the hearing. It is well settled that the court's assessment of conflicting expert testimony is entitled to deference and will not be disturbed if supported by the record ( see Matter of Robert A. [Kelly K.], 109 A.D.3d 611, 613, 971 N.Y.S.2d 12;Matter of Suffolk County Dept. of Social Servs. [Ellen S.], 215 A.D.2d 395, 396, 626 N.Y.S.2d 227). Here, the record supports the court's determination that the testimony of petitioner's expert-which was based on his older, but more thorough,...