In re Brandon M.
Matter of Matter of Brandon M. (Luis M.)
2012
NY Slip Op 02758
Decided
on April 12, 2012
Appellate
Division, First Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on April 12, 2012
Mazzarelli,
J.P., Catterson, DeGrasse, Mazanet-Daniels, Román, JJ.
7338
[*1]In
re Brandon M., and Another, Children Under the Age of Eighteen Years, etc.,
and
Luis
M. Respondent-Appellant, Administration for Children's Services,
Petitioner-Respondent.
George E. Reed, Jr.,
Michael
A. Cardozo, Corporation Counsel,
K. Colt of counsel), for respondent.
Assigned Counsel for the Children,
Tatum-Evans of counsel), attorney for the children.
Appeal
from order, Family Court,
Because
the order of protection has expired, this appeal is moot (see Matter of Diallo v Diallo, 68 AD3d 411
[2009], lv dismissed 14 NY3d 854 [2010]).
Contrary
to respondent's contentions, the order of disposition is not properly before
this Court since the notice of appeal makes no reference to that order and only
attached the order of protection (see CPLR 5515(1); Matter of Peter GG., 36
AD3d 1004, 1005 [2007]).
Were
we to reach the merits, we would find that a preponderance of the evidence
establishes that respondent sexually abused his stepgranddaughter
(Family Ct Act § 1012[e][iii]; § 1046[b][i]). The stepgranddaughter's
out-of-court statements to the social worker and in medical records were
admitted without objection in the joint proceedings against respondent and the
girl's parents. These statements sufficiently corroborated the out-of-court
statement of one of the subject children that he saw respondent with his hand
down the front of his stepgranddaughter's pants,
while respondent's pants were open (see Matter of Anahys
V. [John V.], 68 AD3d 485, 486 [2009], lv denied 14
NY3d 705 [2010]).
The
derivative finding that respondent abused and neglected his biological children
based on the finding that he sexually abused his stepgrandchild
is also supported by a preponderance of the evidence (see Family Ct Act §
1046[a][i]). One of the
subject children witnessed the sexual abuse and the other child was present in
the apartment at the time the abuse took place. Respondent's actions
demonstrated that he has a fundamental defect in his understanding of his [*2]parental obligations (see Matter of Marino S., 100 NY2d
361, 373-375 [2003]).
Contrary
to respondent's contention, the court was entitled to draw a negative inference
against him based on his failure to testify in the proceedings (see Matter of Dashawn W. [Antoine N.], 73 AD3d 574, 575 [2010], lv dismissed 16 NY3d 767 [2011]).
THIS
CONSTITUTES THE DECISION AND ORDER
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
APRIL 12, 2012
CLERK