Opinion
16802 Dkt. Nos. NA-34178/17, NA-34179/17 Case No. 2021–01585
12-06-2022
In the MATTER OF BRITTNEY B., and Another Children Under Years of Age, etc., Marcelo B., Respondent–Appellant, v. Administration for Children's Services, Petitioner-Respondent.
Law Offices of Randall S. Carmel, Jericho, (Randall S. Carmel of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jessica Miller of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Law Offices of Randall S. Carmel, Jericho, (Randall S. Carmel of counsel), for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jessica Miller of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Renwick, J.P., Manzanet–Daniels, Gesmer, Kennedy, Shulman, JJ.
Order of disposition, Family Court, Bronx County (E. Grace Park, J.), entered on or about April 6, 2021, to the extent it brings up for review a fact-finding order, same court (Elenor C. Cherry, J.), entered on or about November 6, 2019, which found that respondent father sexually abused the older child and derivatively neglected the younger child, unanimously affirmed, without costs.
A preponderance of the evidence supports Family Court's finding that the father sexually abused the older child (see Family Court Act §§ 1012[e][iii][A], 1046[b][1] ; Matter of Jani Faith B. [Craig S.], 104 A.D.3d 508, 509, 961 N.Y.S.2d 135 [1st Dept. 2013] ). The older child's sworn testimony at the fact-finding hearing constituted competent evidence that the father began sexually abusing her when she was around six years old, and the absence of a physical injury does not render the testimony unworthy of credibility (see Matter of Alijah S. [Daniel S.], 133 A.D.3d 555, 556, 21 N.Y.S.3d 206 [1st Dept. 2015], lv denied 26 N.Y.3d 917, 2016 WL 531602 [2016] ; Matter of Christina G. [Vladimir G.], 100 A.D.3d 454, 454, 957 N.Y.S.2d 1 [1st Dept. 2012], lv denied 20 N.Y.3d 859, 2013 WL 537153 [2013] ).
Contrary to the father's contention, there is no basis for disturbing Family Court's credibility determinations, including its evaluation of the older child's testimony regarding how long the father had been touching her in a sexual manner and what acts of abuse he committed against her. The court's determination of the witnesses’ credibility was based on observations of their demeanor, and the court rejected the father's claim that he was never alone with his daughter, determining that the testimony was not credible. We find no reason to overturn this credibility determination, which should be accorded deference on appeal (see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ; Matter of Emily S. [Jorge S.], 146 A.D.3d 599, 600, 44 N.Y.S.3d 743 [1st Dept. 2017] ).
In addition, Family Court properly entered a derivative neglect finding against the father as to the younger child. The fact-finding testimony established that the younger child was spending weekends in the home during the period the father sexually abused the older child (see Matter of Marino S., 100 N.Y.2d 361, 373–375, 763 N.Y.S.2d 796, 795 N.E.2d 21 [2003], cert denied 540 U.S. 1059, 124 S.Ct. 834, 157 L.Ed.2d 714 [2003] ; Matter of Cristalyn G. [Elvis S.], 158 A.D.3d 563, 564, 71 N.Y.S.3d 464 [1st Dept. 2018] ).