Opinion
N-1894-13, N-1895-13, N-1896-13, N-1897-13, N-17143-13, 2014-07801.
04-06-2016
In the Matter of DAYANNIE I.M. (Anonymous). Suffolk County Department of Social Services, respondent; Roger I.M. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Eyllen I.M. (Anonymous). Suffolk County Department of Social Services, respondent; Roger I.M. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Hillary I.M. (Anonymous). Suffolk County Department of Social Services, respondent; Roger I.M. (Anonymous), appellant. (Proceeding No. 3) In the Matter of Keyri I.M. (Anonymous). Suffolk County Department of Social Services, respondent; Roger I.M. (Anonymous), appellant. (Proceeding No. 4) In the Matter of Jackzenny I.M. (Anonymous). Suffolk County Department of Social Services, respondent; Roger I.M. (Anonymous), appellant. (Proceeding No. 5).
Gina M. Scelta, Huntington, N.Y., for appellant. Dennis M. Brown, County Attorney, Central Islip, N.Y. (Randall J. Ratje of counsel), for respondent. McGuire & Pelaez, P.C., Central Islip, N.Y. (Mary C. Pelaez of counsel), attorney for the children Dayannie I.M., Hillary I.M., Keyri I.M., and Jackzenny I.M. Lynn Poster–Zimmerman, Huntington, N.Y., for the child Eyllen I.M.
Gina M. Scelta, Huntington, N.Y., for appellant.
Dennis M. Brown, County Attorney, Central Islip, N.Y. (Randall J. Ratje of counsel), for respondent.
McGuire & Pelaez, P.C., Central Islip, N.Y. (Mary C. Pelaez of counsel), attorney for the children Dayannie I.M., Hillary I.M., Keyri I.M., and Jackzenny I.M.
Lynn Poster–Zimmerman, Huntington, N.Y., for the child Eyllen I.M.
CHERYL E. CHAMBERS, J.P., SANDRA L. SGROI, SHERI S. ROMAN, and COLLEEN D. DUFFY, JJ.
Opinion Appeal from an order of fact-finding of the Family Court, Suffolk County (Caren Loguercio, J.), dated July 11, 2014. The order, after a fact-finding hearing, found that the father abused and neglected the child Eyllen I.M., and derivatively abused and neglected the children Dayannie I.M., Hillary I.M., Keyri I.M., and Jackzenny I.M. ORDERED that the order of fact-finding is affirmed, without costs or disbursements.
The petitioner established by a preponderance of the evidence that the appellant sexually abused and neglected his daughter Eyllen I.M. The evidence adduced at the fact-finding hearing established that Eyllen I.M. made consistent, detailed, and explicit out-of-court statements to a child protective agency caseworker, a detective, and a school social worker, describing incidents of sexual abuse by the appellant (see Matter of Melody H. [Dwayne H.], 121 A.D.3d 686, 687, 993 N.Y.S.2d 340 ; Matter of Jada A. [Robert W.], 116 A.D.3d 769, 770, 982 N.Y.S.2d 917 ). The record supports the Family Court's determination that the testimony of the petitioner's child sexual abuse expert, who concluded that Eyllen I.M. exhibited behavior indicative of sexual abuse, as well as the appellant's written confession to the police that he sexually abused Eyllen I.M., sufficiently corroborated Eyllen I.M.'s out-of-court statements of sexual abuse (see Matter of Joshua J.P. [Alguiber R.], 127 A.D.3d 1200, 7 N.Y.S.3d 577 ; Matter of Alexis S. [Edward S.], 115 A.D.3d 866, 867, 982 N.Y.S.2d 366 ; Matter of Emani W. [Owana E.], 107 A.D.3d 815, 816, 966 N.Y.S.2d 527 ; Matter of Kassandra V.
[Sylvia L.], 90 A.D.3d 940, 941, 935 N.Y.S.2d 607 ; Matter of Tristan R., 63 A.D.3d 1075, 1077, 883 N.Y.S.2d 229 ). Although the appellant and the mother of the subject children disputed the allegations, there is no basis in the record to disturb the Family Court's assessment of the witnesses' credibility (see Matter of Victoria P. [Victor P.], 121 A.D.3d 1006, 1006–1007, 994 N.Y.S.2d 409 ; Matter of Joshua P. [David J.], 111 A.D.3d 836, 838, 975 N.Y.S.2d 440 ).
Although Eyllen I.M. recanted her allegations of sexual abuse, “ ‘[a] child's recantation of allegations of abuse does not necessarily require [the] Family Court to accept the later statements as true because it is accepted that such a reaction is common among abused children’ ” (Matter of Tristan R., 63 A.D.3d 1075, 1077, 883 N.Y.S.2d 229, quoting Matter of Kayla N., 41 A.D.3d 920, 922, 837 N.Y.S.2d 424 ; see Matter of Luis N.P. [Alguiber R.], 127 A.D.3d 1201, 1202, 8 N.Y.S.3d 381 ; Matter of Charlie S. [Rong S.], 82 A.D.3d 1248, 1249, 920 N.Y.S.2d 187 ). “Rather, ‘recantation of a party's initial statement simply creates a credibility issue which the trial court must resolve’ ” (Matter of Tristan R., 63 A.D.3d at 1077, 883 N.Y.S.2d 229, quoting Matter of Kayla N., 41 A.D.3d at 922, 837 N.Y.S.2d 424 ). The Family Court did not err in rejecting Eyllen I.M.'s out-of-court recantation, particularly in light of the expert testimony that it was a false recantation, and that Eyllen I.M. may have been pressured to recant because the appellant was placed in jail after her disclosure (see Matter of Melody H. [Dwayne H.], 121 A.D.3d at 687, 993 N.Y.S.2d 340 ; Matter of Stephanie R., 21 A.D.3d 417, 417–418, 799 N.Y.S.2d 804 ).
Moreover, the Family Court's determination that the appellant derivatively abused and neglected the children Dayannie I.M., Hillary I.M., Keyri I.M., and Jackzenny I.M. was supported by a preponderance of the evidence. While a finding of sexual abuse of one child does not, by itself, establish that other children in the household have been derivatively abused or neglected (see Matter of Monica C.M. [Arnold A.], 107 A.D.3d 996, 997, 968 N.Y.S.2d 143 ; Matter of Amoya S. [Henry C.-Syvonne C.], 100 A.D.3d 641, 642, 953 N.Y.S.2d 649 ; Matter of Mindy W. [Gavriel W.], 93 A.D.3d 803, 804, 939 N.Y.S.2d 885 ; Matter of Abigail S., 21 A.D.3d 380, 381, 800 N.Y.S.2d 39 ), the appellant's sexual abuse of Eyllen I.M., which occurred while other children were present in the home, evinced a flawed understanding of his duties as a parent and impaired parental judgment sufficient to support the Family Court's finding of derivative abuse and neglect (see Family Ct. Act § 1046[a][i] ; see generally Matter of Leah R. [Miguel R.], 104 A.D.3d 774, 774, 961 N.Y.S.2d 249 ; Matter of Monica C.M. [Arnold A.], 107 A.D.3d 996, 997, 968 N.Y.S.2d 143 ; Matter of Trenasia J. [Frank J.], 107 A.D.3d 992, 993–994, 966 N.Y.S.2d 875, affd. 25 N.Y.3d 1001, 10 N.Y.S.3d 162, 32 N.E.3d 377 ; Matter of Aliyah G. [Arlenie G.], 95 A.D.3d 885, 887, 942 N.Y.S.2d 903 ; Matter of Rosy
S., 54 A.D.3d 377, 378, 863 N.Y.S.2d 65 ). Although the child Jackzenny I.M. was born after the sexual abuse occurred, the conduct was sufficiently “ ‘proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exist[ed]’ ” (Matter of Jeremiah I.W. [Roger H.W.], 115 A.D.3d 967, 969, 982 N.Y.S.2d 516, quoting Matter of Elijah O. [Marilyn O.], 83 A.D.3d 1076, 1077, 923 N.Y.S.2d 575 ; see Matter of Jamarra S. [Jessica S.], 85 A.D.3d 803, 804, 925 N.Y.S.2d 531 ; Matter of Baby Boy W., 283 A.D.2d 584, 585, 724 N.Y.S.2d 494 ).
To the extent the appellant raises arguments related to the Family Court's subsequent order of fact-finding and disposition dated August 22, 2014, those contentions are not properly before this Court, as the appellant did not appeal from that order (see CPLR 5515[1] ; Matter of Idhailia P. [Philip S.P.], 95 A.D.3d 1333, 1335, 945 N.Y.S.2d 705 ).