Opinion
NA-XXXXXX
04-15-2016
In the Matter of a Proceeding under Article 10 of the Family Court Act, Jessica C. JONATHAN C. ALEX C. EMILY Y., Children Under Eighteen Years of Age Alleged to be Abused by Jose Y., Respondent.
The attorneys on the case are as follows: Meredith Vigilante, Attorney for the Administration for Children's Services Meir Moza, Esq., Attorney for the respondent Emily Cohen, Esq., The Legal Aid Society, Attorney for the child Jessica Richard Colodny, Esq., Attorney for the children Jonathan and Alex Joan James, Esq., Attorney for the child Emily Diane Costanza, Esq., Attorney for the non-respondent mother
The attorneys on the case are as follows: Meredith Vigilante, Attorney for the Administration for Children's Services Meir Moza, Esq., Attorney for the respondent Emily Cohen, Esq., The Legal Aid Society, Attorney for the child Jessica Richard Colodny, Esq., Attorney for the children Jonathan and Alex Joan James, Esq., Attorney for the child Emily Diane Costanza, Esq., Attorney for the non-respondent mother Lillian Wan, J.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. Wan, J.:
In this child protective proceeding, the Court finds by a preponderance of the evidence that the respondent Jose Y., sexually abused the subject child, Jessica C. As a result of his actions towards Jessica, the Court finds that the subject children, Jonathan C., Alex C. and Emily Y., are derivatively abused by the respondent.
PROCEDURAL HISTORY
On October 16, 2012, the Administration for Children's Services (hereinafter ACS or petitioner) filed the instant child abuse petition against the respondent Jose Y., on behalf of the children, Jessica (age 13), Jonathan (age 11) and Alex (age 9). The petition alleges that Mr. Y. is a person legally responsible for the care of the subject children and that Mr. Y. committed a sex offense against the subject child Jessica as defined in Article 130 of the Penal Law in that he fondled her breasts, and touched her thighs and her vagina. Specifically, the petition alleges that Mr. Y. violated Penal Law §§ 130.52 (forcible touching), 130.55 (sexual abuse in the third degree), 130.60 (sexual abuse in the second degree), 130.65 (sexual abuse in the first degree), 130.75 (course of sexual conduct against a child in the first degree) 130.80 (course of sexual conduct against a child in the second degree). The petition also alleges that the respondent derivatively abused the subject children Jonathan and Alex. At the initial appearance, the subject children were released to the non-respondent mother and the Court issued a temporary order of protection against Mr. Y. directing him to stay away from the children. Separate attorneys were assigned to represent Jessica, and the boys, Jonathan and Alex.
On July 12, 2013, the attorney for the subject child Jessica filed an Order to Show Cause seeking a removal of Jessica from the care of the non-respondent mother alleging that the mother has repeatedly stated to the ACS caseworker, in the presence of Jessica, that she plans to send Jessica back to Ecuador. Counsel argued that Jessica needs to be in the jurisdiction to ensure that the Temporary Order of Protection against Mr. Y. is complied with. On that date, the Court issued an interim order directing the non-respondent mother to refrain from sending Jessica to Ecuador pending a determination on the Order to Show Cause. On July 16, 2013, the return date on the motion, counsel for the non-respondent mother represented that she did not want Jessica in her care. The Court directed the petitioner to explore a voluntary placement agreement for Jessica. On August 20, 2013, the petitioner filed an Order to Show Cause seeking a remand of Jessica. The petitioner stated that Jessica refused to return to the mother's care from camp, and had been in the petitioner's care since Friday, August 16, 2013. The non-respondent mother also indicated that she would like Jessica removed from her care. As a result, Jessica was remanded to the care of ACS and placed in stranger foster care, where she remains to this date.
The fact finding hearing began on January 30, 2014 with the commencement of the subject child Jessica's testimony. On September 18, 2014, the petitioner filed an Article 10 petition on behalf of the child Emily Y. (age 1), born on December 25, 2012, alleging that Emily is derivatively abused by the respondent. Emily was temporarily released to the care of the non-respondent mother under weekly ACS supervision. A full stay away temporary order of protection was entered against the respondent except for agency supervised visitation or visitation supervised by an agency approved resource. A third attorney was assigned to represent Emily's interests in this proceeding. The attorney for Emily consented to continuing with the fact finding that day and agreed to review transcripts of the prior proceedings in preparation for her cross examination of Jessica.
On the September 18th court date, new counsel for the petitioner appeared on the record. When the Court inquired as to why the petitioner took nearly two years to file a derivative proceeding as to the child Emily, counsel responded that this information was "privileged."
The matter was tried over the course of approximately eleven trial dates and concluded on February 29, 2016 with summations by all counsel. The attorney for the child Jessica supports a finding of sexual abuse. The attorney for Jonathan and Alex does not support a finding and advocates for dismissal of the petition. Counsel argues that Jessica's testimony was incredible, and the boys do not believe they need protection from the respondent, who they view as a father figure. The attorney for Emily stated that she found Jessica to be credible, however she did not take a position on whether a derivative finding should be entered on behalf of her client, the only biological child of the respondent.
DISCUSSION
Pursuant to F.C.A. §1012(e)(iii), a finding of sexual abuse requires that the Court find that the respondent committed one of the established offenses as defined in Penal Law §130 against a child less than eighteen years of age. Penal Law §130.00(3) defines "sexual contact" as "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party." Under Penal Law §130.52, forcible touching takes place when a person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of gratifying his or her sexual desires. Sexual gratification may be inferred from a totality of the circumstances and from the conduct itself. Matter of Shaquan A., 2016 NY Slip Op 02079 (2nd Dep't 2016); Matter of Jani Faith B., 104 AD3d 508 (1st Dep't 2013); See also Matter of Daniel R., 70 AD3d 839 (2nd Dep't 2010) (finding that the touching of the buttocks or leg can constitute sexual abuse and sexual gratification may be inferred from the acts themselves); Matter of Shannon K., 222 AD2d 905 (3rd Dep't 1995) (the sexual gratification element can be inferred from the respondent's fondling of the child's vaginal area); Matter of Olivia YY., 209 AD2d 892 (3rd Dep't 1994) (Family Court finding that respondent committed acts which constitute sexual abuse in the first degree affirmed where respondent denied ever engaging in the conduct; sexual gratification inferred from the conduct itself).
To enter a finding pursuant to F.C.A. §1012(e)(iii), the Court need only find that the sexual abuse occurred by a preponderance of the evidence. "To establish a fact by the preponderance of the evidence means to prove that the fact is more likely than not to have occurred." Matter of Beautisha B., 115 AD3d 854 (2nd Dep't 2014).
As a threshold matter, the Court finds that Jose Y. is a person legally responsible within the meaning of F.C.A. §1012(g). The Court of Appeals has held that the determination of who is a person legally responsible is a discretionary, fact intensive inquiry which varies according to the particular circumstances of each case. Matter of Trenasia J., 25 NY3d 1001 (2015); Matter of Yolanda D., 88 NY2d 790 (1996). The non-exhaustive factors to be considered include the frequency and nature of the contact; the nature and extent of the control exercised by the respondent over the child's environment; the duration of the respondent's contact with the child, and the respondent's relationship to the child's parent. Matter of Yolanda D., 88 NY2d at 796. It is undisputed that Mr. Y. resided in the home with Jessica, Jonathan and Alex. The record established that he was the mother's paramour and had been living with the mother and Jonathan and Alex since 2008, contributed financially to the household and had caretaking responsibility for the children. Furthermore, Mr. Y. helped the boys with their homework, took them to school, and picked them up from school.
The petitioner's direct case against the respondent consisted solely of the testimony of the child Jessica. This is a case that rests on the credibility of witnesses. The Court must weigh the credibility of Jessica against the credibility of the respondent and the non-respondent mother, who was called as a witness for the respondent.
Jessica testified that she told her school counselor about the sexual abuse allegations first, and they in turn called ACS. Jessica had difficulty remembering her conversations with various ACS caseworkers who investigated the case because the investigation occurred over two years prior to her testimony. However, Jessica was detailed and specific about the allegations which makes it unlikely that she fabricated them. Jessica testified that she came to live with her mother in New York in May of 2012, and that she lived in Ecuador before that. Jessica stated that she lived in her home with her mother, brothers and the respondent for five months, and that everything was fine for the first three months, although she was not happy about having the respondent in the house. Jessica states that the first time Mr. Y. touched her, it was the summer of 2012, and she was in Mr. Y. and the mother's bedroom. Jessica explained that her two brothers, she and the respondent were in the respondent's bedroom "tickling each other." She stated that after her brothers left the bedroom and went back to their own room, the respondent touched her on her breasts. Jessica explained that the respondent stood behind her, hugged her from behind, and touched her breast with his hands.
Jessica further testified that the respondent touched her breast "many times." She testified to another incident where she was in the bathroom and the respondent came in and touched her breast. Jessica provided detail for that incident and described how she asked the respondent for the phone and he refused to give her the phone, that she then took the phone and went into the bathroom. She then put the phone on the respondent's bed and then went back to the bathroom and she locked the door, but the respondent was able to get into the bathroom. Jessica stated that she had pants and a short blouse on at the time. Jessica testified that there were many times in which the respondent touched her that made her uncomfortable. Jessica testified that during one night, in the summer of 2012, the respondent came into her bedroom, while the mother was sleeping in her own bedroom, and began touching her legs, upper thigh and buttocks. She testified that she told him not to do that and the respondent stated that the air conditioner was going to make her sick. Jessica testified that on another occasion, in the morning hours, when she was sick with the flu, she went to the respondent's bedroom and sat on his bed, where he asked her if she "wanted to touch any part of his." When she responded "no," the respondent then stated "these are opportunities we shouldn't overlook or slide by." Jessica stated that right after that, she went back to her room and he touched her again. When counsel asked Jessica if the respondent asked her for sex, Jessica responded "something like that."
Jessica testified that while in his room, the respondent "touched my breasts for a long time." She stated that she returned to her bedroom and was laying on her bed when the respondent came into her bedroom and touched her vagina, under her clothing for "about fifteen minutes." Jessica further testified that while the respondent was touching her vagina, he stated to her, "you have hair on your vagina much thinner than your mom." She further testified that on one occasion, the respondent told her that it would only be between him and her. Jessica stated that she did not tell her mother about the abuse because she "didn't have that trust to do it." When asked on direct examination if the respondent had ever touched her vagina under her clothing on any other occasion, Jessica responded "yeah, that was like twice." Jessica stated that the sexual abuse made her feel "bad" and that he [Mr. Y.] shouldn't have done that." She further stated that she felt "ashamed."
Counsel for the respondent introduced a journal or book containing handwritten entries by Jessica, as Respondent's Exhibit C in evidence. Jessica described her handwritten statement as an assignment that was given by her therapist.
Respondent's Exhibit C (1 of 2) is the journal which contained Jessica's handwritten Spanish entries. Respondent's Exhibit C (2 of 2) is the translator's affidavit and the certified English translation of the journal's contents. --------
Jessica initially wrote, consistent with her testimony, that she experienced sexual abuse when she was 13 years old at the hands of her mother's partner, the respondent. Jessica wrote that the respondent touched her breast when her brothers were in their room and her mother was working. Jessica stated that she was alone in her mother's room with the respondent. Jessica further indicated that the "worst effect" of the sexual abuse is that she has lost all support from her mother, and that she is not able to trust her mother because she immediately tells her partner everything that Jessica tells her mother. Jessica further wrote that "[m]y mother's partner didn't have any right to touch any part of my body."
Further in the journal entry Jessica wrote that she wants "to confess something even though no one will believe or forgive me" and that "[e]verything that I said about my mother and her partner is a lie I only wanted to take revenge of my mother because she brought me here." Jessica further wrote that she lied about the sexual abuse because her mother did not want to buy her a computer, and she was jealous and upset because her mother was happy with the respondent and her mother was not with Jessica's father. She then wrote "[p]lease forgive me; I don't want my mother to suffer because of my fault. I'm very mean and I think that there's no other person with such an evil heart like mine." Jessica goes on to say that she wants her mother to be left alone, that she does not want her mother to "suffer anymore" and she "want[s] this problem to end here." Finally, Jessica writes that her brothers are "poor kids" and "suffering," and that both the respondent and the mother used to pay the "debt" when the respondent lived in the home and the family always had "everything" and "the five of us went on trips." She further indicated that that it is her fault that her mother owes money and "if she doesn't pay in time the interests rates are going to increase."
When confronted on the witness stand with the portions of her handwritten statement in which she recanted the sexual abuse allegations, Jessica stated that although the therapist told her to write the truth, everything she wrote in the book regarding her recantation was a lie. She further testified that the reason she recanted and wrote it in the book was because her mother was angry with her and called her a liar and she was "tired of listening to that." Jessica continued to maintain on the witness stand that what she wrote in the book is a lie, and that the respondent did, in fact, touch her sexually. Furthermore, Jessica stated that she wrote in the book knowing that her counselor was going to show it to her mother because she had family therapy sessions with the therapist. She also assumed that her therapist would discuss what she said to ACS and that the case would then finish.
The Court found the testimony of the child Jessica credible based on a number of factors. First, the child's testimony took over one year to complete. For various reasons, including the unavailability of counsel, the subject child had to return to court five times over the course of a one year period to complete her cross examination. Counsel for the respondent cross examined the child over many hours and on four separate trial dates. In assessing Jessica's credibility, the Court finds it significant that Jessica remained consistent that Mr. Y. touched her breasts and vagina, under rigorous and intense cross examination, court date after court date. See Matter of Kayla J., 74 AD3d 1665, 1667 (3rd Dep't 2010) (noting that the Family Court properly accorded weight to the witness's willingness to subject himself to the "test of cross-examination"). The respondent's contention that Jessica made everything up because she was jealous of her mother and the respondent's relationship is unpersuasive. This Court finds that that Jessica had nothing to gain and everything to lose in coming forward to testify and remaining steadfast in her account of the respondent's sexual abuse. The Court also finds it significant that Jessica testified that she asked to be removed from her mother's home and live with strangers in foster care because she was tired of her mother scolding her and telling her that she lied about the allegations. At the time Jessica started her testimony in January 2014, she had already been in foster care for over five months. By the time Jessica completed her testimony, she had been in foster care for almost a year and a half. Jessica would rather be living with strangers, then live with her mother, who has never believed the allegations. It strains credibility to believe that Jessica would maintain a lie for this many years to reside in stranger foster care because she was jealous of her mother's relationship with Mr. Y. and wanted Mr. Y. to leave her home. After the Article 10 petition was filed in October of 2012, Jessica lived in the home with her mother for approximately ten months without Mr. Y., but she found it intolerable to continue living with her mother when her mother refused to believe her.
On cross examination by the attorney for the child, Jessica testified that her mother called her names such as "bitch" and "dog" and that she wanted the ACS case to be finished. She stated that "mom was always scolding me. She said I was a liar. She said I was lying. She said she wanted the earth to open up and swallow her and my brothers so she could be there." She further testified that this was the reason she lied and recanted the sexual abuse allegations against the Mr. Y.
Jessica also recounted very specific details about how the respondent touched her breasts and vagina including the respondent's statement that the hair around her vagina was "thinner" than her mother's and that she should not let "opportunities" to touch his body parts "slide by." Jessica was also specific that her brothers were present in the home on one occasion when the respondent touched her breasts and that this occurred in the bedroom that the mother shared with the respondent. She maintained this throughout cross examination. While the Court notes that Jessica was not able to recall specific dates that the sexual abuse occurred, this is not a basis for dismissing the petition against the respondent. In Matter of Aleria KK., 127 AD3d 1525, 1526 (3rd Dep't 2015), the Third Department stated that "there is no question that evidence of the exact dates that the abuse and/or neglect occurred is not required in order for petitioner to sustain its applicable burdens of proof in Article 10 proceedings." The Court further emphasized that the child's ability to recall details, including, among other things, dates and times, goes to the credibility and weight given to the child's testimony. Id. Furthermore, the Family Court's assessments of witnesses' credibility are entitled to great deference especially where the critical evidence is testimonial, as it is in the instant case. Id.
With respect to the portion of Jessica's handwritten journal entry where Jessica recanted the allegations, Jessica persuasively explained on the witness stand why she wrote those statements. She acknowledged that she wrote that she lied because she was jealous and her mother did not buy her a computer, but she clarified that she wrote those statements under the assumption that her therapist would show the statements to ACS, and with the hope that the case would then finish. In assessing the credibility of a recantation, the Court must consider the circumstances surrounding the recantation. In Matter of R./B. Children , 256 AD2d 96 (1st Dep't 1998), the First Department ruled that the child's out of court statements were not undermined by her recantation of the sexual abuse allegations in view of the evidence that the recantation was based solely upon the child's reluctance to upset her mother and to put the respondent in jail. See also Matter of Kayla N., 41 AD3d 920 (3rd Dep't 2007) (noting that the very first thing that the child told the police was that she did not want the respondent to be arrested). Similarly in Matter of Ida EE., 31 AD3d 923 (3rd Dep't 2006), the Third Department noted that the subject child was under pressure from her family who encouraged her to change her story, and that the child was very unhappy with her current foster care placement and missed her family a great deal. The Ida EE court further noted that the child wished to avoid causing additional stress for her mother, who suffered from heart problems. Id. In Matter of Melody H. , 121 AD3d 686, 687 (2nd Dep't 2014), the Second Department found that the Family Court did not err in rejecting the child's recantations in light of the evidence that suggested that the subject child recanted the allegations "in order to keep peace in the family." In Matter of Harrhae Y., 112 AD3d 512 (1st Dep't 2013), the Court found that the children's recantation of their initial out-of-court statements did not undermine their credibility since the record demonstrated that the children recanted their statements because they wanted to prevent their mother from having a second finding of neglect entered against her. Finally, in Matter of Dayannie I. M., 2016 Slip Op 02654 (2nd Dep't 2016), the Second Department recently ruled that the Family Court did not err in rejecting the child's out-of-court recantation, particularly in light of expert testimony that it was a false recantation, and that the child may have been pressured to recant because the respondent father was placed in jail after her disclosure.
The Court notes that Jessica felt particularly pressured to recant the allegations because Mr. Y. contributed financially to the household and his absence from the household placed much financial pressure on the non-respondent mother, who derived income solely from selling ices and food on the street. Furthermore, it was clear from both Jessica's testimony and the mother's testimony, that Jessica was pressured to retract the allegations because the mother refused to believe the child and berated the child while she was living in her home.
The respondent testified on his own behalf. The respondent's testimony was self-serving and incredible and at times inconsistent with the mother's testimony. Unsurprisingly, the respondent denied all the allegations of sexual abuse. He denied having any inappropriate sexual contact with Jessica or making any sexual comments towards Jessica. Mr. Y. testified that he moved in with the mother and her sons, Jonathan and Alex, in 2008 and that their relationship was "practically perfect." He stated that he was prepared to treat Jessica as his own child when she arrived in the United States, the same way he treated both her brothers, Jonathan and Alex. The respondent testified that both he and the mother got together $15,000 to bring Jessica to this country from Ecuador. He testified that when Jessica first arrived in the United States, "the first week was perfect." He stated that he would see Jessica, along with the rest of the family, in the afternoons when he returned home from work and that any conversations he had with Jessica were always in the presence of the mother and the other children. The respondent testified that during the second or third week of Jessica being in the home, Jessica approached him in the kitchen, while the mother washed the dishes, and asked him to leave the home. He stated that she made this request three more times and that the last time she said this to him, she also said "if you don't leave my mother, you're going to see what I'm going to do." Mr. Y. indicated that he felt threatened by the statement made by Jessica and that he felt uncomfortable. He further testified that Jessica was disobedient to her mother, left the home when she was not allowed to and returned to the home late.
According to Mr. Y., he was "never" in the home alone with Jessica because he was always at work. He stated that he worked Mondays through Saturdays from 6:00am until 7:00pm, and that he would see Jessica and the rest of the family when he returned home. Mr. Y. indicated that he never gets sick, and that even when he does get sick he always works. He stated that the mother was always home by the time he arrived home. Mr. Y. indicated that he believed Jessica was lying about the sexual abuse allegations because she was jealous and did not want him to be with her mother. He testified that he was first informed about the allegations made by Jessica when a police officer came to the apartment and told him to leave the home. He stated that he was not aware at that time who made the allegations against him but was told the next afternoon that it was Jessica.
The mother, Blanca C., testified on behalf of the respondent. The mother's testimony was very troubling to the Court. The mother firmly told the Court that she never believed the allegations of sexual abuse. The mother testified that she moved to the United States from Ecuador fourteen years ago and that she left Jessica, who was two years old at the time, in Ecuador in the care of the maternal grandmother. She stated that in 2007, she met Mr. Y. and that after they dated for one year, he moved in with her, Jonathan and Alex in 2008. She testified that she got to know the respondent, and that he is a good man and that she trusts him with her children. She described the relationship between Mr. Y. and the boys as "perfect" and stated that they had a father-son relationship. The mother explained that she brought Jessica to the United States when she was 13 years old, and that Jessica never liked the relationship that the mother had with Mr. Y. According to the mother, Jessica did not like that the mother was living with a man that was not her father.
Like the respondent, the mother testified that Jessica was "never" left alone in the home with Mr. Y. The mother reiterated in her testimony over several court dates that Jessica was "never" alone with Mr. Y. She stated that the respondent was always at work, and she would either take Jessica to work with her between the hours of 12:00pm to 5:00pm or leave her with the babysitter. The Court found this testimony to be incredible because the mother acknowledged that she left Jonathan and Alex alone with Mr. Y. If she trusted him enough to leave him alone with Jonathan and Alex, then there was no reason why she would not leave Jessica in his care in the family home. On cross examination by the petitioner, the mother was asked if she thought Jessica was lying. She stated "it's not that I thought, I'm sure it's a lie."
The mother further testified that "I'm not going to let her accuse someone unjustly whether she's my daughter or not." Ms. C. testified that Jessica was never sick during the summer of 2012. She testified that she would have taken Jessica to her pediatrician if Jessica was sick. When asked whether she told Jessica that she did not believe her, the mother responded that she did tell Jessica that she knows "it's not true" and that "she was destroying the whole family with lies." The mother's testimony that in the summer of 2012, every single day, Mr. Y. left the house at 6:00am and did not come home from work until 8:00pm or 9:00pm was not credible. This was also contradicted by the respondent's testimony. Mr. Y. testifies that he worked Monday through Saturday, and got home at approximately 7:00pm. Furthermore, Mr. Y. had keys to the apartment and his name was on the lease so it is difficult to believe that there was not one single day from May of 2012 to October 2012 that he was not in the home with Jessica when the mother was not. The respondent also testified that he has his own construction company and there are times when he leaves his work crew at the job site and works independently.
The mother further testified that she spoke to Jessica about the allegations but that Jessica stayed quiet. The mother denied asking Jessica to change her story, or asking her to tell her therapist that the abuse never happened. She further denied calling her daughter a "bitch" or a "dog." The Court found the mother to be completely aligned with the respondent and was willing to say anything for him. It was clear to the Court that she prioritized her relationship with the respondent over her relationship with Jessica. The mother has not visited the child or written to the child during the time that the child has been in foster care. When counsel for Jessica confronted the mother with this on cross examination, she stated that Jessica has not wanted to visit and she has not written Jessica any letters because she does not know Jessica's address. According to the mother, Jessica requested to be removed from her home to live in foster care with strangers because she "didn't want to follow rules of the house."
The mother further stated that these allegations of sexual abuse have not affected her relationship with Mr. Y., that she knows that "it's not true," and that she continues to have a close relationship with him. The mother further described the allegations against Mr. Y. as "unfair" and "unjust" and she wants her family "to be left alone." The mother's testimony that she found Jessica's journal while cleaning under the bed, and then gave it to "only" ACS is not believable and detracts from her credibility and her claims that the sexual abuse could never have happened because the respondent was never alone with Jessica. Her testimony in this regard was directly contradicted by the respondent, who testified that it was the mother who gave him Jessica's journal. The mother did not explain how the journal wound up in the possession of the respondent and how it became an exhibit for the respondent at trial. The mother demonstrated throughout her testimony that her allegiance is to the respondent, and that she had every reason to lie in order to have the allegations against the respondent dismissed.
The Court finds that the record as a whole supports a finding of abuse against the respondent. It is well established that the credible testimony of the child does not need to be corroborated. Matter of Imani G., 130 AD3d 456 (1st Dep't 2015). Furthermore, physical injury is not needed. See Matter of Jani Faith B., supra. The competent sworn testimony of the child is sufficient to prove by the requisite preponderance of the evidence that the respondent sexually abused Jessica. See Matter of Shaquan A., supra. The Court further concludes that respondent's acts of fondling Jessica's breasts and touching her vagina were for the purpose of sexual gratification and that no other reasonable conclusion can be reached. Accordingly, the petitioner has established by a fair preponderance of the evidence that the respondent has committed a sex offense against the subject child Jessica as defined in Article 130 of the Penal Law, specifically forcible touching (PL §130.52), sexual abuse in the third degree (130.55), and sexual abuse in the second degree (PL §130.60).
Turning to the allegations of derivative abuse regarding Jonathan, Alex and Emily, F.C.A. §1046(a)(i) states that evidence of abuse or neglect of one child shall be admissible evidence in determining whether the other children in the home were abused or neglected. Matter of Shawndel M., 33 AD3d 1006 (2nd Dep't 2006). The focus of the Court's inquiry must be whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent's understanding of the duties of parenthood. Matter of Andrew B.L., 43 AD3d 1046 (2nd Dep't 2007). A derivative finding should be entered when the parental conduct "evinces a transcendent inability to understand or fulfill the parental responsibility of protecting children from harm. " Matter of Heather J., 244 AD2d 762, 764 (3rd Dep't 1997), lv denied 96 NY2d 702 (2001); see also Matter of Amber C., 38 AD3d 538 (2nd Dep't 2007) (holding that a derivative finding of abuse or neglect should be made where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care); see also Matter of Crystal Roxy Lynn D., 296 AD2d 408 (2nd Dep't 2002).
While a finding of sexual abuse of one child does not, by itself, establish that other children in the household have been derivatively abused or neglected, the record established that one incident of sexual abuse, specifically the touching of Jessica's breasts, occurred while Jonathan and Alex were in the home, which evidences a fundamental defect in his understanding of the duties of parenthood and impaired judgment sufficient to support a finding of derivative abuse and neglect. Matter of Dayannie I.M., supra. With regards to the subject child Emily, who was born two months after the initial sexual abuse proceeding was commenced, the Court finds that the conduct was sufficiently proximate in time to the derivative proceeding that it can be reasonably concluded that the condition still existed. Id.
Accordingly, findings of derivative abuse are warranted regarding the children Jonathan, Alex and Emily. DATED: April 15, 2016 ____________________________________ Hon. Lillian Wan