Chautauqua Cnty. Dep't of Soc. Servs. v. Agustin M. (In re Alaysha M.)

• Decision Date: 10 November 2011
• Parties: In the Matter of ALAYSHA M., Chloe M., Dajuan M., Elijah M., and Kaylia M.Chautauqua County Department of Social Services, Petitioner–Respondent;Agustin M., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08045
89 A.D.3d 1467
933 N.Y.S.2d 150

In the Matter of ALAYSHA M., Chloe M., Dajuan M., Elijah M., and Kaylia M.Chautauqua County Department of Social Services, Petitioner–Respondent;Agustin M., Respondent–Appellant.

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

Nov. 10, 2011.

[933 N.Y.S.2d 150]

David J. Pajak, Alden, for Respondent–Appellant.

Barbara L. Widrig, Mayville, for Petitioner–Respondent.

Richard L. Sotir, Jr., Attorney for the Children, Jamestown, for Alaysha M.,

[933 N.Y.S.2d 151]

Chloe M., Dajuan M., Elijah M., and Kaylia M.

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ.

MEMORANDUM:

[89 A.D.3d 1467] In this proceeding pursuant to Family Court Act article 10, respondent father contends that Family Court erred in finding that he derivatively abused the children who are the subject of this proceeding, based on the finding that he had severely abused one of his other children, resulting in the child's death. We note at the outset that the father improperly appealed from an order dispensing with the requirement that reasonable efforts be made to reunite the father with the subject children rather than from the correct subsequent order of fact-finding and disposition. Nevertheless, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as properly taken from the subsequent order ( see CPLR 5520[c]; Matter of Morgan P., 60 A.D.3d 1362, 875 N.Y.S.2d 401).

[89 A.D.3d 1468] Contrary to the father's contention, the finding of derivative abuse is appropriate in view of the nature and severity of the abuse of the child who died ( see Family Ct. Act § 1046[a][i]; Matter of Marino S., 100 N.Y.2d 361, 373–374, 763 N.Y.S.2d 796, 795 N.E.2d 21, cert. denied 540 U.S. 1059, 124 S.Ct. 834, 157 L.Ed.2d 714; Matter of Keara MM., 84 A.D.3d 1442, 1444, 923 N.Y.S.2d 258; Matter of Nicole H., 12 A.D.3d 182, 183, 783 N.Y.S.2d 575). Inasmuch as the father has surrendered his parental rights with respect to the subject children, his further contention that the court erred in granting petitioner's motion seeking a finding pursuant to Family Court Act § 1039–b(a) that it is no longer required to make reasonable efforts to reunite the subject children with the father is now moot ( see Matter of Randi NN., 80 A.D.3d 1086, 1087, 914 N.Y.S.2d 919, lv. denied 16 N.Y.3d 712, 2011 WL 1643552; see also Matter of Jaime S., 32 A.D.3d 1198, 821 N.Y.S.2d 704). The exception to the mootness...