        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

468
CAF 13-01801
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


IN THE MATTER OF ISHANELLYS O., LUIS A.O.
AND LUIS Y.O.
------------------------------------------       MEMORANDUM AND ORDER
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;

LUIS A.O., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


ALAN BIRNHOLZ, EAST AMHERST, FOR RESPONDENT-APPELLANT.

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

LEAH A. BOUQUARD, ATTORNEY FOR THE CHILDREN, BUFFALO.


     Appeal from an order of the Family Court, Erie County (Lisa Bloch
Rodwin, J.), entered October 1, 2013 in a proceeding pursuant to
Family Court Act article 10. The order, inter alia, directed
respondent to comply with the terms and conditions of an order of
protection until September 11, 2027.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by providing that the order of
protection shall expire on September 26, 2014, and as modified the
order is affirmed without costs.

     Memorandum: Respondent appeals from two orders of disposition
relating to specific parts of an underlying fact-finding order.
Turning first to appeal No. 2, respondent challenges Family Court’s
finding that he sexually abused Kimberly A.P., the daughter of his
longstanding live-in girlfriend and thereby derivatively abused and
neglected the girlfriend’s son, Jonathan L.P. In appeal No. 1,
respondent challenges the court’s determination that, based on his
abuse of Kimberly, he derivatively abused and neglected his three
biological children. Respondent also challenges in appeal No. 1 an
order of protection directing him to stay away from his biological
children, with periodic supervised access, until September 11, 2027,
the date his youngest biological child turns 18.

     Contrary to respondent’s contention in appeal No. 2, the court’s
finding of repeated sexual abuse of Kimberly is supported by clear and
convincing evidence (see Family Ct Act § 1046 [b] [ii]). “A child’s
out-of-court statements may form the basis of a finding of [abuse] as
long as they are sufficiently corroborated by [any] other evidence
                                 -2-                           468
                                                         CAF 13-01801

tending to support their reliability” (Matter of Nicholas L., 50 AD3d
1141, 1142; see § 1046 [a] [vi]), and courts have “ ‘considerable
discretion in determining whether a child’s out-of-court statements
describing incidents of abuse have been reliably corroborated and
whether the record as a whole supports a finding of abuse’ ” (Matter
of Nicholas J.R. [Jamie L.R.], 83 AD3d 1490, 1490, lv denied 17 NY3d
708). Here, the out-of-court statements of Kimberly were sufficiently
corroborated by the testimony of the child protective services
caseworker to whom Kimberly described the repeated abuse, as well as
the testimony of petitioner’s expert witness, who opined that
Kimberly’s consistent and detailed accounts of the abuse were reliable
and were “consistent with sexual abuse victimization.” We need not
address respondent’s contention that the court erred in allowing
Kimberly’s sister to testify via closed circuit television from
another courtroom about similar abuse the respondent had perpetrated
against her, inasmuch as Kimberly’s out-of-court statements were
otherwise sufficiently corroborated.

     We further conclude, in appeal No. 2, that the court properly
determined that respondent derivatively abused and neglected Jonathan
and, in appeal No. 1, that the court properly determined that
respondent derivatively abused and neglected his three biological
children. “The record supports the determination of the court that
[respondent’s] sexual abuse of [Kimberly] demonstrated fundamental
flaws in [his] understanding of the duties of parenthood and warranted
a finding of derivative neglect with respect to the [other children]”
(Matter of Leeann S. [Michael S.], 94 AD3d 1455, 1455 [internal
quotation marks omitted]).

     We agree with respondent in appeal No. 1, however, that the court
erred in entering an order of protection preventing him from having
unsupervised visits with his biological children before September 11,
2027, the date his youngest biological child turns 18. “Family Court
Act § 1056 (1) prohibits the issuance of an order of protection that
exceeds the duration of any other dispositional order in the case”
(Matter of Sheena D., 8 NY3d 136, 140), and the dispositional order in
appeal No. 1, which places respondent under the supervision of
petitioner, expired on September 26, 2014. The expiration date of the
order of protection entered with respect to respondent’s biological
children is also therefore September 26, 2014, and we modify the order
in appeal No. 1 accordingly. Because that order of protection has
expired, we need not consider respondent’s remaining contention in
appeal No. 1 concerning that order.




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
