Opinion
02-07-2017
IN RE KARIME R., and Others, Children Under Eighteen Years of Age, etc., Robin P., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Andrew J. Baer, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Eric Lee of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Amy C. Hausknecht of counsel), attorney for the children.
Andrew J. Baer, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Eric Lee of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Amy C. Hausknecht of counsel), attorney for the children.
TOM, J.P., RENWICK, SAXE, FEINMAN, GESMER, JJ.
Order of fact-finding and disposition (one paper), Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about September 18, 2014, to the extent it brings up for review an order of fact-finding, same court and Judge, entered on or about September 24, 2014, which, among other things, found that respondent-appellant had sexually abused the oldest subject child and had derivatively abused the two youngest subject children, unanimously affirmed, without costs. Appeal from the fact-finding order, entered on or about September 24, 2014, unanimously dismissed, without costs, as subsumed in the appeal from the order of fact-finding and disposition (one paper).
The September 24, 2014 order memorialized a decision described on the record on September 18, 2014.
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The record supports Family Court's determination that respondent was a person legally responsible for the care of the two oldest children when the sexual abuse occurred, because the oldest child's undisputed testimony permitted "an inference of substantial familiarity" between herself, her siblings and respondent at the time of the abuse (Family Ct. Act § 1012 [g] ; Matter of Keoni Daquan A. [Brandon W.—April A.], 91 A.D.3d 414, 415, 937 N.Y.S.2d 160 [1st Dept.2012] [internal quotation marks omitted]; Matter of Joel O. [Yvonne O.], 93 A.D.3d 491, 492, 940 N.Y.S.2d 226 [1st Dept.2012] ).
A preponderance of the evidence supports Family Court's finding that respondent had sexually abused the oldest child and had derivatively abused the two youngest children (Family Ct. Act §§ 1012[e][iii] ; 1046[b][i] ). Family Court properly credited the oldest child's testimony, and any inconsistencies with her prior statements were minor and peripheral to her claim that respondent had inappropriately touched her (see Matter of Kylani R. [Kyreem B.], 93 A.D.3d 556, 557, 941 N.Y.S.2d 46 [1st Dept.2012] ). Although the child's testimony was competent evidence that respondent had sexually abused her and did not have to be corroborated, the record shows that it was corroborated by the caseworker's testimony and by the child's records from the Children's Advocacy Center, which included the child's similar account of the sexual abuse (see Matter of Marelyn Dalys C.-G. [Marcial C.], 113 A.D.3d 569, 569, 979 N.Y.S.2d 519 [1st Dept.2014] ). Respondent's intent to gain sexual gratification from touching the child's breasts and vagina was properly inferred from the acts themselves, especially given the lack of any other explanation (Matter of Dorlis B. [Dorge B.], 132 A.D.3d 578, 579, 18 N.Y.S.3d 327 [1st Dept.2015] ). Respondent's out-of-court statement that the child had misunderstood what had happened because he only hugged the child and did not mean to do it, confirmed the child's testimony that respondent had touched her and failed to rebut the evidence of his culpability (see Matter of Philip M., 82 N.Y.2d 238, 244, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993] ; see also Matter of Benjamin L., 9 A.D.3d 153, 155, 780 N.Y.S.2d 8 [1st Dept.2004] ).
Family Court was entitled to draw the strongest negative inference from respondent's failure to testify at the fact-finding hearing, notwithstanding the existence of pending criminal charges against him (see Matter of Nicole H., 12 A.D.3d 182, 183, 783 N.Y.S.2d 575 [1st Dept.2004] ).
The derivative abuse findings are not undermined by the fact that, at the time of the abuse, the youngest child had not yet been born and the middle child was only an infant. Respondent's actions demonstrated that his parental judgment and impulse control were so defective as to create a substantial risk of harm to any child in his care (see Matter of Nyjaiah M. [Herbert M.], 72 A.D.3d 567, 899 N.Y.S.2d 53 [1st Dept.2010] ).