Opinion
January 31, 1994
Appeal from the Family Court, Queens County (Schindler, J.).
Ordered that the order of disposition with respect to Matthew B. is modified, by deleting all provisions referring to Matthew B. as an abused child and substituting therefor provisions adjudicating him to be a neglected child within the meaning of Family Court Act § 1012 (f) (i); as so modified, that order is affirmed, without costs or disbursements; and it is further,
Ordered that the fact-finding order with respect to Matthew B. is modified accordingly; and it is further,
Ordered that the order of disposition with respect to Lauren B. is affirmed, without costs or disbursements.
The evidence adduced at the fact-finding hearing established by a preponderance of the evidence that Lauren B. was an abused child within the meaning of Family Court Act § 1012 (e) (iii). Her out-of-court statements regarding the abuse were corroborated by medical evidence (see, Matter of Estina W., 181 A.D.2d 554; Matter of Dutchess County Dept. of Social Servs. [Kerri K.], 135 A.D.2d 631). Even assuming that the father was not the perpetrator, proof that Lauren was subjected to sexual abuse while in his custody was sufficient to establish a prima facie case of abuse against him (see, Family Ct Act § 1046 [a] [ii]; Matter of F. Children, 178 A.D.2d 246; Matter of Tania J., 147 A.D.2d 252). Once the agency established a prima facie case, the burden shifted to the father to offer a satisfactory explanation to rebut the evidence (see, Matter of P. Children, 172 A.D.2d 839; Matter of Jesse S., 152 A.D.2d 581). The father failed to offer any explanation for Lauren's condition. We find that the agency established by a preponderance of the evidence that he either was aware of or reasonably should have been aware of the abuse and failed to protect Lauren (see, e.g., Matter of Sara X., 122 A.D.2d 795; Matter of Katherine C., 122 Misc.2d 276).
We find that the agency failed to establish by a preponderance of the evidence that Matthew was an abused child, as no evidence was offered to corroborate his out-of-court statements or to establish that the father knew or reasonably should have known of any abuse. Nevertheless, under the circumstances of this case, we find that the evidence was sufficient to support a finding of derivative neglect of Matthew within the meaning of Family Court Act § 1012 (f) (i) (see, e.g., Matter of Dutchess County Dept. of Social Servs. v. Douglas E., 191 A.D.2d 694; Matter of Suffolk County Dept. of Social Servs. v. James M., 188 A.D.2d 603; Matter of Lynelle W., 177 A.D.2d 1008; Family Ct Act § 1046 [a] [i]; cf., Matter of Anita U., 185 A.D.2d 378). Thompson, J.P., O'Brien, Ritter and Altman, JJ., concur.