Opinion
2012-11-9
In the Matter of RAYGEN D. Cattaraugus County Department of Social Services, Petitioner–Respondent; Timothy H., Respondent–Appellant.
Appeal from an order of the Family Court, Cattaraugus County (Larry M. Himelein, J.), entered January 4, 2012 in a proceeding pursuant to Family Court Act article 10. The order, among other things, adjudged that respondent abused the subject child. Legal Assistance of Western New York, Inc./Southern Tier Legal Services, Olean (Jessica L. Anderson of Counsel), for Respondent–Appellant. Stephen J. Riley, Olean, for Petitioner–Respondent.
Appeal from an order of the Family Court, Cattaraugus County (Larry M. Himelein, J.), entered January 4, 2012 in a proceeding pursuant to Family Court Act article 10. The order, among other things, adjudged that respondent abused the subject child.
Legal Assistance of Western New York, Inc./Southern Tier Legal Services, Olean (Jessica L. Anderson of Counsel), for Respondent–Appellant. Stephen J. Riley, Olean, for Petitioner–Respondent.
Wendy A. Tuttle, Attorney for the Child, Allegany, for Raygen D.
MEMORANDUM:
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
In appeal No. 1, respondent appeals from an order of fact-finding and disposition determining that he sexually abused a five-year-old girl for whom he acted as a parent substitute. In appeal No. 2, he appeals from an order of fact-finding and disposition determining that he derivatively neglected his two-year-old daughter. Contrary to respondent's contentions in each appeal, Family Court's findings of sexual abuse are supported by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i]; Matter of Nicholas J.R. [Jamie L.R.], 83 A.D.3d 1490, 1490, 922 N.Y.S.2d 679,lv. denied 17 N.Y.3d 708, 930 N.Y.S.2d 552, 954 N.E.2d 1178). The out-of-court statements of the child who was allegedly sexually abused “were sufficiently corroborated by the testimony of an evaluating psychologist who opined that the child's statements made both to the psychologist and to a caseworker for child protective services during a videotaped interview were credible” ( Nicholas J.R., 83 A.D.3d at 1490, 922 N.Y.S.2d 679;see Matter of Annastasia C. [Carol C.], 78 A.D.3d 1579, 1580, 910 N.Y.S.2d 631,lv. denied 16 N.Y.3d 708, 921 N.Y.S.2d 188, 946 N.E.2d 176). Moreover, the court properly drew “a strong inference against [respondent] for failing to testify” (Matter of Iyonte G. [Charles J.R.], 82 A.D.3d 765, 767, 918 N.Y.S.2d 519).
Contrary to respondent's further contention, the evidence established that respondent “demonstrated a total lack of understanding of the parental role so as to place [his daughter] in imminent danger of harm and accordingly support a finding of neglect” (Matter of Amanda LL. [David NN.], 195 A.D.2d 708, 710, 600 N.Y.S.2d 298;see Matter of Kennedie M. [Douglas M.], 89 A.D.3d 1544, 1545, 934 N.Y.S.2d 278,lv. denied18 N.Y.3d 808, 942 N.Y.S.2d 35, 965 N.E.2d 262;Matter of Jovon J., 51 A.D.3d 1395, 1396, 857 N.Y.S.2d 850).
Finally, we conclude that respondent has failed to demonstrate any basis for modifying the terms of the disposition.