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

1253
CAF 13-01169
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF ZOE L. AND MAKELA L.
------------------------------------------
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
                                                  MEMORANDUM AND ORDER
MELISSA L. AND MATTHEW E.,
RESPONDENTS-APPELLANTS.
(APPEAL NO. 1)


CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT MELISSA L.

R. THOMAS BURGASSER, PLLC, NORTH TONAWANDA (R. THOMAS BURGASSER OF
COUNSEL), FOR RESPONDENT-APPELLANT MATTHEW E.

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

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


     Appeals from an order of the Family Court, Erie County (Margaret
O. Szczur, J.), entered May 22, 2013 in proceedings pursuant to Family
Court Act article 10. The order adjudged that respondents had abused
and severely abused Zoe L., and derivatively abused and derivatively
severely abused Makela L.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law and the facts by vacating the findings
that respondent Matthew E. abused Zoe L. and derivatively abused
Makela L. and by vacating the findings of severe abuse with respect to
Zoe L. and derivative severe abuse with respect to Makela L. and the
petition is dismissed against respondent Matthew E., and as modified
the order is affirmed without costs in accordance with the following
Memorandum: These consolidated appeals arise from two related child
protective proceedings pursuant to article 10 of the Family Court Act.
Zoe L. is the younger sister of Makela L., respondent Melissa L.
(mother) is the mother of both children, and respondent Matthew E.
(Matthew) is the father of Makela L. but not Zoe L. By the order in
appeal No. 1, Family Court concluded, following a fact-finding
hearing, that respondents abused and severely abused Zoe L., and that
respondents derivatively abused and derivatively severely abused
Makela L. By the order in appeal No. 2, the court denied respondents’
requests for a suspended judgment.

     With respect to appeal No. 1, we note at the outset that we agree
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                                                         CAF 13-01169

with the mother that she is aggrieved by the order to the extent that
it concerns the fact-finding hearing despite the fact that she entered
into a contract for services in lieu of a dispositional hearing, and
thus her appeal is properly before us (see Matter of Child Welfare
Admin. v Jennifer A., 218 AD2d 694, 695, lv denied 87 NY2d 804).
Contrary to the contention of the mother, however, we conclude that
petitioner established a prima facie case of abuse with respect to Zoe
L. against her (see Matter of Damien S., 45 AD3d 1384, 1384, lv denied
10 NY3d 701; see also Matter of Philip M., 82 NY2d 238, 243), and that
there is no basis upon which to disturb that finding, which was based
primarily on the court’s assessment of credibility (see Damien S., 45
AD3d at 1384; see generally Matter of Irene O., 38 NY2d 776, 777).
Petitioner also established by a preponderance of the evidence that
Makela L. was derivatively abused by the mother (see Matter of
Jezekiah R.-A. [Edwin R.-E.], 78 AD3d 1550, 1551). We also conclude,
however, that the findings of the court that Matthew abused Zoe L. and
derivatively abused Makela L. are against the weight of the evidence
inasmuch as we cannot agree with the court’s credibility
determinations in this respect (cf. Damien S., 45 AD3d at 1384), and
we therefore modify the order in appeal No. 1 accordingly. We further
conclude that there is insufficient evidence that Zoe L. was severely
abused by the mother or Matthew (see Jezekiah R.-A., 78 AD3d at 1552).
For the same reasons, we conclude that there is insufficient evidence
that the mother or Matthew derivatively severely abused Makela L. (see
id.), and we therefore further modify the order in appeal No. 1
accordingly. We have considered the remaining contentions of the
parties with respect to appeal No. 1 and conclude that they are
without merit or are academic in light of our determination.

     Turning to appeal No. 2, we note that the mother has not raised
any issues with respect to this order in her brief on appeal, and we
thus deem any such issues abandoned (see id. at 1551). Inasmuch as
the issue whether the court erred in denying Matthew’s request for a
suspended judgment is moot in light of our decision in appeal No. 1,
we dismiss Matthew’s appeal from the order in appeal No. 2.




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
