Opinion
07-11-2017
In Re MARKEITH G., and Others, Dependent Children Under Eighteen Years of Age, etc., Deon W., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Steven N. Feinman, White Plains, for appellant. Zachary W. Carter, Corporation Counsel, New York (Daniel Matza–Brown of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), attorney for the children Markeith G. and Tiera G. Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), attorney for the child Daveon W.
Steven N. Feinman, White Plains, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Daniel Matza–Brown of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), attorney for the children Markeith G. and Tiera G.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), attorney for the child Daveon W.
FRIEDMAN, J.P., RENWICK, ANDRIAS, MOSKOWITZ, GESMER, JJ.
Order of disposition, Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about March 15, 2016, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about March 15, 2016, which found that respondent-appellant sexually abused one of the subject children and derivatively abused the two others, unanimously affirmed, and the appeal from the order of disposition otherwise dismissed, without costs, as taken from a nonappealable order. Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition. Appeal from order of protection, same court and Judge, entered on or about March 15, 2016, unanimously dismissed, without costs, as taken from a nonappealable order.
The Family Court's determination that respondent sexually abused the female child is supported 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] ). That child's in-court testimony regarding the sexual abuse respondent inflicted upon her was sufficient to support the abuse finding (see Matter of Fendi B. [Jason B.], 142 A.D.3d 878, 37 N.Y.S.3d 538 [1st Dept.2016] ). There is no basis for disturbing the court's credibility determinations, including its evaluation of the alleged inconsistencies in the child's testimony (see id. ). Respondent's intent to gain sexual gratification from the acts described by the child was properly inferred from the acts themselves, especially given the lack of any other explanation (see Matter of Dorlis B. [Dorge B.], 132 A.D.3d 578, 579, 18 N.Y.S.3d 327 [1st Dept.2015] ).The Family Court properly drew a negative inference from respondent's failure to testify at the fact-finding hearing (see Matter of Ashley M.V. [Victor V.],
106 A.D.3d 659, 660, 966 N.Y.S.2d 406 [1st Dept.2013] ). The criminal case pending against him at the time of the hearing did not deprive the court of the right to draw on adverse inference from his failure to testify (see Matter of Rachel S.D. [Luis N.], 113 A.D.3d 450, 979 N.Y.S.2d 22 [1st Dept.2014] ; Matter of Jonathan Kevin M. [Anthony K.], 110 A.D.3d 606, 607, 974 N.Y.S.2d 355 [1st Dept.2013] ).
A preponderance of the evidence supports the Family Court's determination that respondent derivatively abused the two male children. The female child's testimony that the male children were sleeping in the same bedroom as she when respondent sexually abused her establishes that respondent's parental judgment and impulse control were so defective as to create a substantial risk of harm to any child in his care (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 sub nom. Marino S. v. Angel Guardian Children & Family Services, Inc., 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 order of disposition and the order of protection are not appealable, because they were entered on consent (see Matter of Ian C., 254 A.D.2d 132, 679 N.Y.S.2d 296 [1st Dept.1998] ).