Opinion
2018–08468 2018–08470 Docket Nos. N-17442-13, N-17443-13, N-17444-13, N-11552-14
10-30-2019
In the MATTER OF JOSE E. (Anonymous), Jr. Administration for Children's Services, Respondent; v. Jose M. (Anonymous), et al., Appellants. (Proceeding No. 1) In the Matter of Jada E. (Anonymous). Administration for Children's Services, Respondent; v. Jose M. (Anonymous), et al., Appellants. (Proceeding No. 2) In the Matter of Victoria O. (Anonymous). Administration for Children's Services, Respondent; v. Jose M. (Anonymous), et al., Appellants. (Proceeding No. 3) In the Matter of Comanche L. (Anonymous). Administration for Children's Services, Respondent; v. Jose M. (Anonymous), et al., Appellants. (Proceeding No. 4)
Tennille M. Tatum–Evans, New York, NY, for appellant Jose M. Joel Borenstein, Brooklyn, NY, for appellant Carmen N. Georgia M. Pestana, Acting Corporation Counsel, New York, N.Y. (Scott Shorr and John Moore of counsel), for respondent. Daniel P. Moskowitz, Jamaica, NY, attorney for the children Jose E., Jada E. and Comanche L. Janet E. Sabel, New York, N.Y. (Dawbe A. Mitchell and Judith Stern of counsel), attorney for the child Victoria O.
Tennille M. Tatum–Evans, New York, NY, for appellant Jose M.
Joel Borenstein, Brooklyn, NY, for appellant Carmen N.
Georgia M. Pestana, Acting Corporation Counsel, New York, N.Y. (Scott Shorr and John Moore of counsel), for respondent.
Daniel P. Moskowitz, Jamaica, NY, attorney for the children Jose E., Jada E. and Comanche L.
Janet E. Sabel, New York, N.Y. (Dawbe A. Mitchell and Judith Stern of counsel), attorney for the child Victoria O.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER In related proceedings pursuant to Family Court Act article 10, Jose M. and Carmen N. separately appeal from (1) an order of the Family Court, Kings County (Alan Beckoff, J.), dated July 20, 2016, and (2) an order of the same court dated July 6, 2018. The order dated July 20, 2016, after a fact-finding hearing, found that Jose M. sexually abused and neglected the child Victoria O., and derivatively neglected the children Jose E. and Jada E., and that Carmen N. neglected Victoria O., and derivatively neglected Jose E. and Jada E. The order dated July 6, 2018, after a fact-finding hearing, found that Jose M. and Carmen N. derivatively neglected the child Comanche L.
ORDERED that the order dated July 20, 2016 is affirmed, without costs or disbursements; and it is further,
ORDERED that the order dated July 6, 2018 is affirmed, without costs or disbursements.
In 2013, Carmen N. resided in a one-bedroom apartment with her three children Victoria O., Jose E., and Jada E., as well as the maternal grandfather, and Jose M., who was Carmen N.'s long-term boyfriend. In June 2013, the Administration for Children's Services (hereinafter ACS) commenced three related proceedings pursuant to Family Court Act article 10, alleging that Jose M., a person legally responsible for the subject children, sexually abused Victoria O., that Carmen N. neglected Victoria O., and that Jose M. and Carmen N. derivatively neglected Jose E. and Jada E. In May 2014, following the birth of Comanche L., ACS filed a petition against Jose M. and Carmen N., the parents of Comanche L., alleging that they derivatively neglected Comanche L.
Following a fact-finding hearing, in an order dated July 20, 2016, the Family Court found that Jose M. sexually abused Victoria O., that Carmen N. neglected Victoria O., and that Jose M. and Carmen N. derivatively neglected Jose M.E. and Jada E. In an order dated July 6, 2018, the Family Court found that Jose M. and Carmen N. derivatively neglected Comanche L. Jose M. and Carmen N. separately appeal from both orders.
"At a fact-finding hearing, any determination that a child is an abused or neglected child must be based on a preponderance of the evidence" ( Matter of D.S. [Shaqueina W.], 147 A.D.3d 856, 857, 47 N.Y.S.3d 364 ; see Family Ct Act § 1046[b][I] ). "Great deference is given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear the testimony, and observe their demeanor" ( Matter of Oliver A. [Oguis A.-D.], 167 A.D.3d 867, 868, 90 N.Y.S.3d 142 ).
Here, ACS established by a preponderance of the evidence that Jose M. sexually abused Victoria O. (see Family Ct Act §§ 1012[e][iii] ; 1046[b][I]; Matter of M.W. [Mohammad W.], 172 A.D.3d 879, 881, 100 N.Y.S.3d 287 ; Matter of Naphtali A. [Winifred A.], 165 A.D.3d 781, 784, 85 N.Y.S.3d 512 ). Victoria O.'s testimony as to multiple instances of such abuse was sufficient to support a finding of abuse (see Matter of D.S. [Shaqueina W.], 147 A.D.3d at 858, 47 N.Y.S.3d 364 ). In addition, the evidence that Jose M. pleaded guilty in a criminal proceeding to endangering the welfare of Victoria O., together with the testimony of the ACS caseworker and Carmen N. regarding certain out-of-court statements made by Victoria O. regarding the abuse, were also sufficient to support a finding of abuse (see Matter of Anthony G. [Jose G.-G.], 147 A.D.3d 829, 830, 48 N.Y.S.3d 145 ; Matter of Kyle D. [Dwayne D.], 138 A.D.3d 835, 835–836, 29 N.Y.S.3d 540 ). Contrary to the contentions of Jose M. and Carmen N., any inconsistencies in the testimony presented by ACS did not render such testimony unworthy of belief (see Matter of Mayra C. [Adan C.], 163 A.D.3d 808, 810, 81 N.Y.S.3d 488 ; Matter of Cashmere T. [Andrew S.], 161 A.D.3d 1177, 1178, 77 N.Y.S.3d 477 ; Matter of Brianna M. [Corbert G.], 152 A.D.3d 600, 601, 58 N.Y.S.3d 534 ). Furthermore, Jose M.'s sexual abuse of Victoria O. supports a finding that he derivatively neglected Jose M.E., Jada E., and Comanche L., since his conduct demonstrated a fundamental defect in his understanding of the duties of parenthood so as to create a substantial risk of harm to any child in his care (see Matter of Naphtali A. [Winifred A.], 165 A.D.3d at 784, 85 N.Y.S.3d 512 ; Matter of Kristina I. [Al Quran F.], 163 A.D.3d 565, 567, 76 N.Y.S.3d 420 ; Matter of Anthony G. [Jose G.-G.], 147 A.D.3d at 830, 48 N.Y.S.3d 145 ).
ACS also established by a preponderance of the evidence that Carmen N. neglected Victoria O. based on inadequate supervision or guardianship (see Family Ct Act §§ 1012[f][i][B] ; 1046[b][i] ). The testimony presented at the fact-finding hearing established that although Carmen N. made Jose M. leave the family home immediately after Victoria O. reported the abuse to her, Carmen N. allowed Jose M. to return a few days later. By allowing Jose M. to continue residing in the home with Victoria O., Carmen N. failed to protect Victoria O. and placed Victoria O. at substantial risk of harm (see Matter of Patricia B., 61 A.D.3d 861, 862, 877 N.Y.S.2d 219 ; Matter of Derrick C., 52 A.D.3d 1325, 1326, 859 N.Y.S.2d 855 ; Matter of Selena J., 35 A.D.3d 610, 611, 825 N.Y.S.2d 749 ; Matter of Alexis C., 27 A.D.3d 646, 647–648, 811 N.Y.S.2d 449 ). Moreover, Carmen N.'s neglect of Victoria O. evinced a flawed understanding of her duties as a parent and a lack of parental judgment sufficient to support the Family Court's finding that she derivatively neglected Jose M.E., Jada E., and Comanche L. (see Matter of Sarah C. [Caroline C.], 132 A.D.3d 862, 862–863, 17 N.Y.S.3d 886 ; Matter of Monique M. [Georgette S.], 110 A.D.3d 814, 815, 973 N.Y.S.2d 665 ; Matter of Alexis C., 27 A.D.3d at 648, 811 N.Y.S.2d 449 ).
RIVERA, J.P., COHEN, MILLER and HINDS–RADIX, JJ., concur.