Opinion
8459
02-21-2019
IN RE SAMANTHA F., and Others, Children Under the Age of Eighteen Years, etc., Edwin F. Respondent-Appellant, v. The Administration for Children's Services Petitioner-Respondent.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Renwick, J.P., Tom, Singh, Moulton, JJ.
Contrary to petitioner agency's argument, the appeal is properly taken from an appealable paper. Although denominated a decision, the paper bears the standard language advising that any appeal from the "order" must be taken within 30 days ( Family Ct. Act § 1113 ), and is, in substance, an order finding that the children have been abused/neglected ( Family Ct. Act § 1051[a] ), which is appealable as of right ( Family Ct. Act § 1112[a] ).
The court's determination that respondent sexually abused the eldest child, for whom he was responsible, is supported by a preponderance of the evidence. The testimony of the child was not necessary to make a fact-finding of abuse ( Family Ct. Act § 1046[a][vi] ; [b][i] ). The court properly found that the child's detailed out-of-court statements were sufficiently corroborated by the testimony of her mother, by out-of-court statements of a sibling submitted through a case worker's testimony, as well as by the expert testimony of a therapist social worker with a specialization in child abuse and trauma, who opined that the child's behavior and demeanor were consistent with a child who has been sexually abused (see Matter of Nicole V., 71 N.Y.2d 112, 120–121, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ; Matter of Dorlis B. [Dorge B.], 132 A.D.3d 578, 18 N.Y.S.3d 327 [1st Dept. 2015] ). The expert's opinion was properly based on the testimony of another social worker who was subject to cross-examination, whose testimony was in evidence and found to be reliable, and whose credibility is not challenged by respondent (see e.g. Wagman v. Bradshaw, 292 A.D.2d 84, 86–87, 739 N.Y.S.2d 421 [2d Dept. 2002] ).
Respondent's sexual abuse of the eldest child supports a finding of derivative neglect of the other children since it demonstrates that his understanding of his parental obligations is so defective as to place them at substantial risk, particularly since the children were in respondent's sole care at the times that the abuse occurred (see Matter of Skylean A.P. [Jeremiah S.], 136 A.D.3d 515, 516, 26 N.Y.S.3d 517 [1st Dept. 2016], lv denied 27 N.Y.3d 907, 2016 WL 3084142 [2016] ; Matter of Kylani R. [Kyreem B.], 93 A.D.3d 556, 941 N.Y.S.2d 46 [1st Dept. 2012] ).