Opinion
14132-14132A Dkt. No. NA-31586-88/16 NA-11927/16 Case No. 2020-04445
06-29-2021
In the MATTER OF Jason ALEXANDER B., and Others, Children Under Eighteen Years of Age, etc., Antonio G., also known as Jorge G., Respondent–Appellant, Brenda S., Respondent, v. Administration for Children's Services, Petitioner–Respondent.
Steven N. Feinman, White Plains, for appellant. James E. Johnson, Corporation Counsel, New York (Rebecca L. Visgaitis of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Steven N. Feinman, White Plains, for appellant.
James E. Johnson, Corporation Counsel, New York (Rebecca L. Visgaitis of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Manzanet–Daniels, J.P., Kern, Mazzarelli, Shulman, JJ.
Order of disposition, Family Court, Bronx County (Lynn M. Leopold, J.), entered on or about October 23, 2020, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about August 18, 2020, which found that respondent-appellant Antonio G. abused and neglected the subject children, Jason and Damira, and derivatively abused and neglected the subject children, Jayrell and Phillip, unanimously affirmed, without costs. Appeal from the fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
The Family Court's determination that respondent sexually abused and neglected Jason and Damira is supported by a preponderance of the evidence, and the testimony of the children was not necessary to make a fact-finding determination of abuse or neglect ( Family Ct Act § 1046[a][vi], [b][i] ). The court properly found that Damira's detailed out-of-court statements were sufficiently corroborated by the expert testimony of a licensed clinical social worker with a specialty in child sexual abuse treatment, who directly supervised Damira's therapist, that the child suffered from posttraumatic stress disorder related to her sexual abuse and trauma (see Matter of Nicole V., 71 N.Y.2d 112, 121–122, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ; Matter of Estefania S. [Orlando S.], 114 A.D.3d 453, 979 N.Y.S.2d 582 [1st Dept. 2014] ). The testimony of Damira's therapist regarding Damira's demeanor and behavior when discussing the abuse and consistent statements concerning the abuse, and the therapy, school, and agency records recording prior statements by the child, provided further corroboration.
Respondent's contention that he was not a person legally responsible for the two eldest children is unpreserved (see Matter of Treyvone A. [Manuel R.], 188 A.D.3d 1182, 133 N.Y.S.3d 292 [2d Dept. 2020], lv denied 36 N.Y.3d 908, 2021 WL 1133509 [2021] ). In any event, the argument is unavailing (see Matter of Yolanda D., 88 N.Y.2d 790, 796–797, 651 N.Y.S.2d 1, 673 N.E.2d 1228 [1996] ). At the time of the abuse, respondent was a frequent visitor in their home, staying overnight multiple times per week, bringing food and taking the children to restaurants, and the abuse occurred in their home. Damira referred to respondent as her stepfather and respondent is the biological father of two of her siblings.
Contrary to respondent's argument, his actions demonstrated that his parental judgment was so impaired such that Jayrell and Phillip were placed at substantial risk of harm (see Matter of Markeith G. [Deon W.], 152 A.D.3d 424, 425, 58 N.Y.S.3d 359 [1st Dept. 2017] ).
We have considered respondent's remaining arguments and find them unavailing.