Opinion
2014-06-26
In re DANIELA R., and Others, Children Under the Age Of Eighteen Years, etc., Daniel R., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondent.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child Daniela R.
Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children Adonis R., Danieda R. and Esniel R.
MAZZARELLI, J.P., ACOSTA, FREEDMAN, RICHTER, Clark, JJ.
Orders of disposition, Family Court, New York County (Clark V. Richardson, J.), entered on or about June 11, 2013, which, to the extent appealed from as limited by the briefs, brings up for review a fact-finding determination that respondent father sexually abused his daughters Danieda R. and Daniela R., unanimously affirmed, without costs. Appeal from order of fact-finding, same court and Judge, entered on or about May 4, 2013, unanimously dismissed, without costs, as superceded by the appeal taken from the orders of disposition.
The finding that respondent sexually abused his two daughters was supported by a preponderance of the evidence, including the sworn testimony of the daughters ( seeFamily Ct. Act §§ 1012[e][iii]; 1046[b][I]; Matter of Christina G. [Vladimir G.], 100 A.D.3d 454, 957 N.Y.S.2d 1 [1st Dept.2012], lv. denied20 N.Y.3d 859, 2013 WL 537153 [2013] ). There exists no basis to disturb the court's credibility determinations ( see generally Matter of Irene O., 38 N.Y.2d 776, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ). Furthermore, the record shows that respondent presented no credible evidence to explain his conduct except to claim that he was never alone with his daughters. However, this testimony was contradicted by his own testimony and that of his wife ( see Matter of Elizabeth S. [Dona M.], 70 A.D.3d 453, 894 N.Y.S.2d 51 [1st Dept.2010] ).
The record also demonstrates by a preponderance of the evidence that respondent inappropriately touched his daughters for the purpose of gratifying his sexual desire. In this regard, the court properly drew a negative inference against him as to that issue, because gratification may be inferred from the totality of the circumstances and respondent failed to offer an innocent explanation for his actions ( see Matter of Jani Faith B. [Craig S.], 104 A.D.3d 508, 509, 961 N.Y.S.2d 135 [1st Dept.2013] ).