Opinion
773, 772.
04-12-2016
In re LESLI R., and Others., Children Under Eighteen Years of Age, etc., Luis R., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Kenneth M. Tuccillo, Hastings on Hudson, for appellant. Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the children Lesli R. and Brenda R. Anne Reiniger, New York, attorney for the children Ruby R., Damaris R., Isamel R., Elias R. and Bernice R.
Kenneth M. Tuccillo, Hastings on Hudson, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the children Lesli R. and Brenda R.
Anne Reiniger, New York, attorney for the children Ruby R., Damaris R., Isamel R., Elias R. and Bernice R.
FRIEDMAN, J.P., SWEENY, SAXE, RICHTER, KAHN, JJ.
Order of disposition, Family Court, Bronx County (Karen I. Lupuloff, J.), entered on or about January 21, 2015, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about June 2, 2014, which found that respondent sexually abused his stepdaughters and derivatively abused his five biological children, unanimously affirmed, without costs. Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
The record supports the court's determination that respondent was a person legally responsible for the children who were referred to as his stepdaughters, and that a preponderance of the evidence demonstrated that he sexually abused them (see Family Ct. Act §§ 1012[e][iii] ; 1046[b][i]; Matter of Shirley C.-M., 59 A.D.3d 360, 360, 873 N.Y.S.2d 616 [1st Dept.2009] ). Contrary to respondent's contention, his stepdaughters' out-of-court statements that he was inappropriately touching them was sufficiently corroborated by his own out-of-court statements that although he knew that his “rough housing” was making them uncomfortable, he continued touching them (see Matter of
N. & G. Children, 176 A.D.2d 504, 504–505, 574 N.Y.S.2d 696 [1st Dept.1991] ). The fact that one of the stepdaughters vaguely recanted her statements did not render her initial statements incredible as a matter of law (see Matter of Shawn P., 266 A.D.2d 907, 908, 697 N.Y.S.2d 901 [4th Dept.1999], lv. denied 94 N.Y.2d 760, 706 N.Y.S.2d 81, 727 N.E.2d 578 [2000] ). Moreover, the fact that the stepdaughters did not have a physical injury or other corroboration does not require a different result (see Matter of Jonathan F., 294 A.D.2d 121, 744 N.Y.S.2d 362 [1st Dept.2002], citing Matter of Danielle M., 151 A.D.2d 240, 242–243, 542 N.Y.S.2d 525 [1st Dept.1989] ).
Upon petitioner establishing its prima facie case, the burden shifted to respondent to explain his conduct and rebut the evidence of his culpability, but he presented no credible evidence in his defense (see Matter of Elizabeth S. [Dona M.], 70 A.D.3d 453, 453–454, 894 N.Y.S.2d 51 [1st Dept.2010] ). Respondent's intent to gain sexual gratification was properly inferred from his continuing to touch his stepdaughters even after he was told he was making them uncomfortable (see Matter of Daniel R. [Lucille R.], 70 A.D.3d 839, 841, 894 N.Y.S.2d 165 [2d Dept.2010] ).
A preponderance of the evidence in the record supports the Family Court's determination that respondent derivatively abused his own five children. Petitioner's caseworker testified that one of respondent's stepdaughters told her that three of the other children were present on the bottom bunk when respondent sexually abused her, and thus, his actions demonstrated that he has a fundamental defect in his understanding of his parental obligations (see Matter of Marino S., 100 N.Y.2d 361, 373–375, 763 N.Y.S.2d 796, 795 N.E.2d 21 [2003], cert. denied 540 U.S. 1059, 124 S.Ct. 834, 157 L.Ed.2d 714 [2003] ; Matter of Brandon M. [Luis M.], 94 A.D.3d 520, 520–521, 942 N.Y.S.2d 79 [1st Dept.2012] ).
The Family Court providently exercised its discretion in granting the motion of the stepdaughters' attorney to quash respondent's subpoena to compel one of his stepdaughters to testify at the hearing because the letter from the child's psychotherapist and the affidavit from the child's social worker provided evidence of the potential psychological harm that testifying would cause to the child (see Matter of Imman H., 49 A.D.3d 879, 881, 854 N.Y.S.2d 517 [2d Dept.2008] ; Matter of Jennifer G., 261 A.D.2d 823, 687 N.Y.S.2d 844 [4th Dept.1999] ).