Opinion
01-24-2017
In re KAYLA S., A Dependent Child Under the Age of Eighteen Years, etc., Eddie S., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
The Bronx Defenders, Bronx (Saul Zipkin of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child.
The Bronx Defenders, Bronx (Saul Zipkin of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child.
SWEENY, J.P., RENWICK, ANDRIAS, KAHN, GESMER, JJ.
Order of disposition, Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about June 16, 2015, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about June 2, 2015, which found that respondent had sexually abused the subject child, unanimously affirmed, without costs. Appeal from the fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
Regardless of whether the Family Court improperly took judicial notice of certain facts, the child's in-court testimony regarding the sexual abuse respondent inflicted upon her was sufficient to support the abuse finding by a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ; Matter of Shirley C.-M., 59 A.D.3d 360, 360, 873 N.Y.S.2d 616 [1st Dept.2009] ; Matter of Anjoulic J., 18 A.D.3d 984, 987, 794 N.Y.S.2d 709 [3d Dept.2005] ). The child's testimony did not require corroboration (see Matter of Marelyn Dalys C.-G. [Marcial C.], 113 A.D.3d 569, 569, 979 N.Y.S.2d 519 [1st Dept.2014] ). In any event, the testimony was corroborated by the child's medical records, which included her similar account of the abuse, as well as by the child protection specialist's testimony (see Matter of Dayanara V. [Carlos V.], 101 A.D.3d 411, 412, 955 N.Y.S.2d 566 [1st Dept.2012] ). The testimony of respondent's witnesses, who did not witness the incident, did not explain his conduct or rebut the evidence of his culpability (see Matter of Jani Faith B. [Craig S.], 104 A.D.3d 508, 509, 961 N.Y.S.2d 135 [1st Dept.2013] ). Family Court properly drew a negative inference against respondent for failing to testify at the hearing (id.; Matter of Jonathan Kevin M. [Anthony K.], 110 A.D.3d 606, 607, 974 N.Y.S.2d 355 [1st Dept.2013] ).