Opinion
12348 Dkt. No. NA-23662-5/17 NA-16938/18 Case No. 2019-03068
11-12-2020
IN RE GABRIEL R., and Others, Children Under Eighteen Years of Age, etc., Jose R., Respondent–Appellant, v. Shameeza K., Respondent Administration for Children's Services, Petitioner–Respondent.
Bruce A. Young, New York, for appellant. James E. Johnson, Corporation Counsel, New York (Jessica Miller of counsel), for respondent. Larry Bachner, New York, for Gabriel R. and Nadya R., attorney for the Children. Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), for Liam B., Alexia B. and Arianna B., attorney for the children.
Bruce A. Young, New York, for appellant.
James E. Johnson, Corporation Counsel, New York (Jessica Miller of counsel), for respondent.
Larry Bachner, New York, for Gabriel R. and Nadya R., attorney for the Children.
Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), for Liam B., Alexia B. and Arianna B., attorney for the children.
Gische, J.P., Gesmer, Kern, Kennedy, JJ.
Order of fact-finding and disposition (two papers), Family Court, Bronx County (Sarah P. Cooper, J.), entered on or about February 5, 2019, which, to the extent appealed from as limited by the briefs, found that respondent Jose R., sexually abused Arianna B., neglected Arianna B., Alexia B., Liam B., and Gabriel R., and derivatively neglected Nadia R., unanimously affirmed, without costs.
The court's determination that respondent sexually abused the eldest child, for whom he was legally responsible, is supported by a preponderance of the evidence. The court properly found that the child's detailed out-of-court statements were admissible because they were sufficiently corroborated by the expert testimony of a psychologist with a specialization in child abuse and trauma, who examined the child. The expert opined that the child's statements and demeanor were consistent with children who have been sexually abused and it was more likely than not that the child had been sexually abused (see Matter of Samantha F. [Edwin F.], 169 A.D.3d 549, 549–550, 95 N.Y.S.3d 31 [1st Dept. 2019], lv dismissed 33 N.Y.3d 1042, 103 N.Y.S.3d 15, 126 N.E.3d 1055 [2019] ). Respondent's guilty plea to endangering the welfare of a child also provided sufficient corroboration to support the reliability of Arianna's out-of-court statements (see Matter of Milagros C. [Rosa R.], 121 A.D.3d 481, 993 N.Y.S.2d 502 [1st Dept. 2014] ). Although repetition of the child of the same allegations does not provide corroboration, the consistency of her reported statements enhances their credibility. Further, respondent's decision not to testify warranted a negative inference against him (see Matter of David R. [Carmen R.], 123 A.D.3d 483, 484, 998 N.Y.S.2d 182 [1st Dept. 2014] )
The finding that respondent used excessive corporal punishment was supported by testimony that Alexia and Liam reported that respondent had hit them with a belt. These out-of-court statements by the siblings provide cross-corroboration of excessive use of force by respondent against Alexia and Liam, and the statements were further corroborated by the grandmother's and uncle's testimony that they saw belt marks on Liam and Alexia (see Matter of Jermaine J. [Howard J.], 121 A.D.3d 437, 993 N.Y.S.2d 34 [1st Dept. 2014] ). The court acted within its discretion to consider a prior finding of neglect against appellant for inflicting excessive corporal punishment because the finding was based on the same conduct directed at appellant's older children (see Matter of Angie G. [Jose D.G.], 111 A.D.3d 404, 974 N.Y.S.2d 369 [1st Dept. 2013] ).
The Family Court properly found that respondent neglected Arianna, Alexia, Liam, and Gabriel, all then under ten years old, by regularly leaving them home alone without supervision when he went to pick up the mother from her job in Manhattan (see Matter of Tavene H.[William G.], 139 A.D.3d 633, 634, 31 N.Y.S.3d 70 [1st Dept. 2016] ; Matter of Delybe C.[Sonia S.], 121 A.D.3d 467, 994 N.Y.S.2d 96 [1st Dept. 2014] ).
The finding of derivative neglect against respondent as to Nadya was appropriate, since his behavior evinced such an impaired level of judgment as to create a substantial risk of harm to her (see Matter of Kimberly H., 242 A.D.2d 35, 38, 673 N.Y.S.2d 96 [1st Dept. 1998] ).
We have reviewed respondent's remaining contentions and find them unavailing.