Opinion
2012-12-4
In re DAYANARA V., and Others, Dependent Children Under Eighteen Years of Age, etc., Carlos V., et al., Respondents–Appellants, New York City Administration for Children's Services, Petitioner–Respondent.
Steven N. Feinman, White Plains, for Carlos V., appellant. Daniel R. Katz, New York, for Luz V., appellant.
Steven N. Feinman, White Plains, for Carlos V., appellant. Daniel R. Katz, New York, for Luz V., appellant.
Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Marcia Egger of counsel), attorney for the child Dayanara V.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), attorney for the children Stephanie V., Crystal V., Angelina V., Alexa V., Ka-el V., and Christopher V.
SAXE, J.P., FRIEDMAN, ACOSTA, RENWICK, FREEDMAN, JJ.
Order of disposition, Family Court, Bronx County (Anne–Marie Jolly, J.), entered on or about October 6, 2011, which, upon a fact-finding determination that respondents abused and neglected the eldest child and derivatively abused and neglected the younger children, placed the eldest child in the care of the Administration for Children's Services until the next scheduled permanency hearing, issued a final order of protection in favor of the eldest child against respondent father for a period of 12 months, paroled the younger children to respondents under six months of supervision, and imposed other conditions, unanimously modified, on the law and the facts, to vacate the findingsof abuse and derivative abuse as against respondent mother, and otherwise affirmed, without costs.
The findings of abuse and neglect against the father were supported by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i] ). At the fact-finding hearing, the eldest child testified that while the father was drunk, he sexually abused her on three occasions when she was 13 years old, and this was corroboratedby the testimony of a caseworker and a pediatric specialist, who indicated that she told them similar accounts. The eldest child was subjected to extensive cross-examination, and the court credited her testimony. There exists no basis to disturb the court's credibility determinations ( see Matter of Jared S. [ Monet S.], 78 A.D.3d 536, 911 N.Y.S.2d 339 [1st Dept.2010], lv. denied16 N.Y.3d 705, 2011 WL 589734 [2011] ).
The eldest child also testified that as punishment for continuing to see a boyfriend that her parents did not approve of, the father punched her in the stomach and had her sibling punch her in the eye, causing bruises. Such conduct constituted excessive corporal punishment and thus, neglect ( seeFamily Ct. Act § 1012[f][i][B]; Matter of Joseph C. [ Anthony C.], 88 A.D.3d 478, 931 N.Y.S.2d 44 [1st Dept.2011] ). Moreover, the findings of derivative abuse and neglect against the father as to the younger children were appropriate. The father's actions evinced such a fundamental defect in parenting as to place the other children in substantial risk of harm ( see Matter of Joshua R., 47 A.D.3d 465, 849 N.Y.S.2d 246 [1st Dept.2008], lv. denied11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198 [2008] ).
The court erred in finding that the mother abused the eldest child and derivatively abused the younger children by allowing the eldest child to be sexually abused. The child testified that she only informed the mother of the abuse when the mother interrupted the last abusive incident, after which the mother engaged in a argument with the father, who never again abused the child.
However, the mother never reported the father's conduct, nor did she have the father removed from the home, which placed all of the children in imminent risk of harm from the father's sexual compulsion, which was fueled by alcohol abuse. Accordingly, the findings of neglect and derivative neglect were supported since she did not act as a reasonably prudent parent to protect the children from this risk ( see e.g. Matter of Rayshawn R., 309 A.D.2d 681, 765 N.Y.S.2d 872 [1st Dept.2003];Matter of Eric J., 223 A.D.2d 412, 413, 636 N.Y.S.2d 762 [1st Dept.1996] ).