In re Jorge S.

Jan 19, 1995
Versions:211 A.D.2d 513
621 N.Y.S.2d 66
1995 N.Y. App. Div. LEXIS 385

Final order of disposition, Family Court, Bronx County (Marjory D. Fields, J.), entered March 24, 1992, which placed appellant’s children with the Commissioner of Social Services for a period of twelve months, which order followed a fact-finding determination on October 29, 1991, that appellant had abused her son Jorge and had derivatively abused her daughter, Shevon, unanimously affirmed, as to the fact-finding determination and, unanimously dismissed as moot, as to the dispositional order, without costs.

A preponderance of the credible evidence established that appellant abused her son (Family Ct Act § 1046 [a] [ii]; see, Matter of Philip M., 82 NY2d 238, 243-244). There was proof that he had a spiral fracture of the left arm for which prompt medical treatment was not obtained and that appellant falsely described the cause of his injury. Further, there is proof that he also had an old, untreated fracture of the right clavicle, and that appellant previously had been found guilty of child abuse and neglect (see, Matter of Vincent M., 193 AD2d 398). The derivative finding was also proper as there is no need to find physical injuries with respect to a sibling of an abused child (supra, at 404). The court did not err in declining to allow the testimony of witnesses that was cumulative and/or irrelevant (see, Tavarez v DeLange, 190 AD2d 568).

Since the dispositional order has expired and there have been two subsequent orders extending placement, from which no appeal was taken, we decline to reach the merits of the arguments with respect to the dispositional order (Matter of F. Children, 199 AD2d 81). Were we to address the merits, we would affirm as the order was supported by a preponderance of the evidence that the placement was in the best interests of both children, and any technical deficiencies were harmless *514(see, Matter of Rachel G., 185 AD2d 382, 383-384). Concur— Ellerin, J. P., Ross, Williams and Tom, JJ.