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

343
CAF 12-02022
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF BURKE H.
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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,       MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

RICHARD H., RESPONDENT-APPELLANT,
AND TIFFANY H., RESPONDENT.


DENIS A. KITCHEN, WILLIAMSVILLE, FOR RESPONDENT-APPELLANT.

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

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).


     Appeal from an order of the Family Court, Erie County (Margaret
O. Szczur, J.), entered August 24, 2012 in a proceeding pursuant to
Family Court Act article 10. The order, among other things,
determined Burke H. to be a neglected child.

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

     Memorandum: In this proceeding pursuant to Family Court Act
article 10, respondent father appeals from an order adjudicating the
subject child to be neglected by him. Contrary to the father’s
contention, Family Court’s finding of derivative neglect is supported
by a preponderance of the evidence (see Matter of Arianna M. [Brian
M.], 105 AD3d 1401, 1401, lv denied 21 NY3d 862). Petitioner
established that the father failed to address the problems that led to
the findings of neglect with respect to his other three children (see
Matter of Krystal J., 267 AD2d 1097, 1098), and we conclude that the
evidence with respect to those children “demonstrates such an impaired
level of parental judgment as to create a substantial risk of harm for
any child in [his] care” (Matter of Daniella HH., 236 AD2d 715, 716;
see Matter of Majerae T. [Crystal T.], 74 AD3d 1784, 1785). Contrary
to the father’s further contention, the court properly drew “ ‘the
strongest possible negative inference’ against [him] 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; see Matter of
Jayden B. [Erica R.], 91 AD3d 1344, 1345; Matter of Serenity P.
[Shameka P.], 74 AD3d 1855, 1855).

     Finally, we reject the father’s contention that the court
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accorded too much weight to a psychological evaluation conducted
several years prior to the hearing. It is well settled that the
court’s assessment of conflicting expert testimony is entitled to
deference and will not be disturbed if supported by the record (see
Matter of Robert A. [Kelly K.], 109 AD3d 611, 613; Matter of Suffolk
County Dept. of Social Servs. [Ellen S.], 215 AD2d 395, 396). Here,
the record supports the court’s determination that the testimony of
petitioner’s expert—which was based on his older, but more thorough,
evaluation—was more credible than the testimony provided by the
father’s expert, which was based entirely on the father’s self-
reported history. We therefore see no basis to disturb the court’s
assessment of the expert testimony (see Matter of Diamond K., 31 AD3d
553, 554).




Entered:   May 2, 2014                         Frances E. Cafarell
                                               Clerk of the Court
