                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 3, 2015                    519736
_________________________________

In the Matter of KAYLEY E. and
   Another, Neglected Children.

SULLIVAN COUNTY DEPARTMENT OF
   SOCIAL SERVICES,
                    Respondent;

JAMES F.,
                      Appellant.

(Proceeding No. 1.)
_________________________________

In the Matter of ALYSSA E.                   MEMORANDUM AND ORDER
   et al.,
                    Respondents,
      v

HEIDI E.,
                      Respondent,
     and

SULLIVAN COUNTY DEPARTMENT OF
   FAMILY SERVICES,
                    Respondent,
      and

JAMES F.,
                      Appellant.

(Proceeding No. 2.)

(And Another Related Proceeding.)
_________________________________


Calendar Date:    October 15, 2015

Before:    Garry, J.P., Egan Jr., Rose and Clark, JJ.
                              -2-                519736

                           __________

     Cliff Gordon, Monticello, for appellant.

      Glen H. Rosenstein, Department of Family Services,
Monticello, for Sullivan County Department of Social Services,
respondent.

     Ivy M. Schildkraut, Monticello, attorney for the children.

                           __________


Garry, J.P.

      Appeals from an order and an amended order of the Family
Court of Sullivan County (Meddaugh, J.), entered August 20, 2014,
which, in proceedings pursuant to Family Ct Act articles 6, 10
and 10-A, among other things, directed that respondent James F.
have no contact with the subject children.

      Respondent James F. (hereinafter the father) and his wife,
respondent Heidi E., are the parents of two children (hereinafter
the children), born in 1999 and 2002, respectively. The children
were removed from the parents' custody in 2007, after the father
was accused and later convicted of raping, sodomizing and
sexually assaulting, over a protracted period of time, his two
teenage stepchildren who lived in the family home, some of which
occurred when the younger stepchild was under the age of 13. The
father is not expected to be released from the incarceration
imposed as a result of these crimes until 2032. Following a
hearing in 2007, Family Court determined that the father had
severely abused the younger stepchild and had derivatively
neglected the children and placed the children under the
supervision of the Sullivan County Department of Family Services.
In 2008, the court issued a permanent order of protection in
effect until March 12, 2020, directing, among other things, that
the father have no contact with the children. Since 2010, the
children have remained in the care and guardianship of paternal
relatives, petitioners Alyssa E. and James E. (hereinafter
collectively referred to as petitioners). By all accounts, the
                              -3-                519736

children have thrived and excelled.

      In 2014, the Department of Family Services filed a notice
of permanency pursuant to Family Ct Act article 10-A recommending
that custody of the children be awarded to petitioners, who
thereafter filed a petition seeking custody of the children under
Family Ct Act article 6. After a combined hearing at which the
attorney for the children consented to the custody request, and
an in camera hearing with the children, Family Court issued an
order and an amended order which, among other things, granted
petitioners sole legal and physical custody of the children,
directed that the father shall have no contact with the children,
and continued the 2008 permanent order of protection. The father
appeals, challenging Family Court's directive that he have no
contact with the children and continuing the 2008 order of
protection.

      We affirm. The father, who was represented by counsel
throughout the course of the proceedings, did not seek to modify
or challenge the 2008 no-contact order of protection. He opposed
the custody petition, but he did not testify, call witnesses or
elicit testimony regarding the advisability of contact with the
children, nor did he at any time make a request for contact with
the children. The father's attorney indicated that the father
simply wanted to be sure that the children were aware "that he's
alive and exists." The testimony established that the children
had asked about the father and were aware that he was
incarcerated, but had not expressed a desire to resume contact
with him. Accordingly, the contentions raised by the father on
appeal were not preserved for our review (see Matter of Marcus
BB. [David BB.], 129 AD3d 1134, 1135 [2015]; Matter of Anthony
MM. v Rena LL., 34 AD3d 1171, 1172 [2006], lv denied 8 NY3d 805
[2007]).

     Egan Jr., Rose and Clark, JJ., concur.
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      ORDERED that the order and amended order are affirmed,
without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
