         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
75
CAF 12-00440
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF BRITTANY W., STEPHAEN W.,
MICHAEL W., KARA W. AND JUSTIN W.
---------------------------------------------        MEMORANDUM AND ORDER
NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;

PATRICK W., RESPONDENT-APPELLANT,
AND KAREN W., RESPONDENT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF
COUNSEL), FOR RESPONDENT-APPELLANT.

LAURA WAGNER, LOCKPORT, FOR PETITIONER-RESPONDENT.

DEBORAH A. WALKER-DEWITT, ATTORNEY FOR THE CHILDREN, LOCKPORT, FOR
BRITTANY W., STEPHAEN W., MICHAEL W., KARA W. AND JUSTIN W.


     Appeal from an order of the Family Court, Niagara County (John F.
Batt, J.), entered February 16, 2012 in a proceeding pursuant to
Family Court Act article 10. The order, among other things, found
that respondent Patrick W. neglected two of his children and
derivatively neglected three others.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent father appeals from an order finding that
he neglected his two children and derivatively neglected three others.
Contrary to the father’s contention, the out-of-court statements of
his two children were sufficiently corroborated by their “cross
statements,” the photographic evidence of their injuries, and the
caseworker’s testimony (Matter of Frank Y., 11 AD3d 740, 742 [internal
quotation marks omitted]; see Family Ct Act § 1046 [a] [vi]).
“Moreover, [Family Court] properly drew ‘the strongest possible
negative inference’ against the father after he failed to testify at
the fact-finding hearing” (Matter of Kennedie M. [Douglas M.], 89 AD3d
1544, 1545, lv denied 18 NY3d 808). We therefore conclude that the
court’s finding of neglect was justified on this record, as was its
finding of derivative neglect with respect to the other three children
(see Matter of Steven L., 28 AD3d 1093, 1093, lv denied 7 NY3d 706).
We reject the father’s further contention that the court improperly
admitted testimony and other evidence regarding an order of protection
that he contends was not in effect, inasmuch as the record does not
substantiate his claim that the order at issue was not actually in
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                                                         CAF 12-00440

effect. In any event, the evidence relating to that order of
protection was not material to the court’s ultimate finding of
neglect, and any error in its admission is thus harmless (see Matter
of A.R., 309 AD2d 1153, 1153; see also Matter of Shirley v Shirley,
101 AD3d 1391, ___; Matter of Anjoulic J., 18 AD3d 984, 986-987).




Entered:   February 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
