Matter of Nadiya Marie S. (Virgilio David O.--Kimberly F.)

Matter of Nadiya Marie S. (Virgilio David O.--Kimberly F.) (2016 NY Slip Op 03823)

Matter of Nadiya Marie S. (Virgilio David O.--Kimberly F.)

2016 NY Slip Op 03823

Decided on May 17, 2016

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 May 17, 2016
Mazzarelli, J.P., Moskowitz, Manzanet-Daniels, Gesmer, JJ.

1149A 1149 1148

[*1] In re Nadiya Marie S., and Another, Children Under the Age of Eighteen Years, etc.,

and

Virgilio David O., Respondent-Appellant, Kimberly F., Respondent, Administration for Children's Services, Petitioner-Respondent.

Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.

Order of disposition, Family Court, Bronx County (Alma M. Gomez, J.), entered on or about April 21, 2015, to the extent it brings up for review a fact-finding order, same court (Erik S. Pitchal, J.), entered on or about February 20, 2015, which found that respondent Virgilio David O. (respondent) had abused the subject children, unanimously affirmed, without costs. Appeal from fact-finding order, unanimously dismissed, without costs, as

subsumed in the appeal from the order of disposition. Appeal from orders of protection, same court (Alma M. Gomez, J.), entered on or about April 21, 2015, unanimously dismissed, without costs, as abandoned.

The record supports Family Court's determination that when the sexual abuse occurred, respondent was a person legally responsible for the children's care; therefore, the finding of abuse against him is sustainable (see Family Ct Act § 1012[a], [e][iii]; [g]; Matter of Yolanda D., 88 NY2d 790, 796 [1996]; Matter of Keoni Daquan A. [Brandon W.—April A.], 91 AD3d 414, [*2]415 [1st Dept 2012]). The discussion in the fact-finding order that respondent had severely abused the children is tantamount to dicta, because Family Court ultimately determined that respondent had abused the children pursuant to Family Court Act § 1012.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 17, 2016

CLERK