Opinion
NAxxx-x/xx
01-29-2018
In the MATTER OF SF, AC, MF, EE, Children Under Eighteen Years of Age Alleged to be Neglected and Abused by Edwin F., Respondent.
New York City Administration for Children's Services, By: Paula Bondad Esq., 900 Sheridan Avenue, Bronx, New York 10451 Michael DeMattio, Esq., Attorney for the Respondent, 445 Hamilton Street, Suite 1102, White Plains, New York 10601 Bronx Defenders, By: Christopher Buerger Esq., Attorney for Non–Respondent Mother, 360 East 161st Street, Bronx, New York 10451 Legal Aid Society–Juvenile Rights Division, By: Cynthia Rivera Esq., Attorney for the Children SF, AC, MF and EE, 900 Sheridan Avenue, Bronx, New York 10451
New York City Administration for Children's Services, By: Paula Bondad Esq., 900 Sheridan Avenue, Bronx, New York 10451
Michael DeMattio, Esq., Attorney for the Respondent, 445 Hamilton Street, Suite 1102, White Plains, New York 10601
Bronx Defenders, By: Christopher Buerger Esq., Attorney for Non–Respondent Mother, 360 East 161st Street, Bronx, New York 10451
Legal Aid Society–Juvenile Rights Division, By: Cynthia Rivera Esq., Attorney for the Children SF, AC, MF and EE, 900 Sheridan Avenue, Bronx, New York 10451
Sarah P. Cooper, J.
PROCEDURAL HISTORY
On January 4, 2017, the Commissioner of Administration for Children's Services [hereinafter referred to as the "Petitioner" or "ACS"] filed petitions against Edwin F. [hereinafter referred to as the "Respondent"] alleging that the Respondent sexually abused and neglected EE (DOB: xx-xx-02) within the meaning of Family Court Act Section 1012 in that he committed sex offenses against her as defined in section 130 of New York Penal Law. The petitions further allege that, based on the Respondent's sexual abuse of EE, EE's siblings (AC, DOB xx-xx-xx; SF, DOB xx-xx-xx; MF, DOB xx-xx-xx) were derivatively abused and neglected.
At intake on January 4, 2017, the Respondent was not present but the non-respondent mother, Ms. DC [hereinafter referred to as the "Non–Respondent Mother" or "Ms. C"], was present. Ms. C was assigned an attorney from The Bronx Defenders and the children were assigned an attorney from The Legal Aid Society. The Court issued an order releasing the children to the Non–Respondent Mother on certain conditions. The Court also issued a temporary order of protection against the Respondent on behalf of the children that directed the Respondent to stay away from the children except for court ordered supervised visitation.
On January 12, 2017, the Respondent appeared in Court and was assigned an attorney from the 18b panel, Michael DeMattio. The Court continued the temporary order of protection against the Respondent and continued the release order to the Non–Respondent Mother.
A fact-finding commenced in this matter on March 10, 2017 and continued on May 23, 2017, July 21, 2017, August 21 2017 and September 29, 2017. The Non–Respondent Mother, as well as Child Protective Specialist A. Gilmore [hereinafter referred to as "CPS Gilmore"], testified on behalf of the Petitioner. Ms. Maria K. [hereinafter referred to as "Ms. K"], a social worker from the Legal Aid Society, and Ms. Juliet H. [hereinafter referred to as "Ms. H"], a New York State licensed master social worker, testified on behalf of the attorney for the children. Ms. H was qualified, without objection, as an expert in social work with a specialization in child abuse. The Respondent testified on his own behalf. The Court accepted into evidence without objection an oral transmittal report dated December 19, 2016 (Petitioner's Exhibit 1) and the curriculum vitae of Ms. H (Attorney for the Children's Exhibit 1).
SUMMARY OF THE RELEVANT TESTIMONY
On December 19, 2016, Ms. Sandra N. from Long Island City Hospital made a report with the State Central Registry alleging that the Respondent was sexually abusing the child EE (Petitioner's 1). CPS Gilmore testified that, upon receiving the oral transmittal report on December 19, 2016, she began a child protective investigation. On December 19, 2016, CPS Gilmore was present at the special victim's unit when EE was interviewed by a Special Victim's Unit detective.
CPS Gilmore testified that EE disclosed that, beginning in February of 2016, her stepfather (the Respondent) touched her breasts and vagina, that the Respondent would also touch his pants, and that on one occasion, the Respondent told EE to "suck his dick". EE further disclosed that the Respondent would touch her two times per month, on Sundays. EE explained that, while the Respondent was doing this, her siblings would be in the living room watching television and her mother would be at work. EE disclosed that in October of 2016, when her mother was in the hospital, the Respondent made her dress up in her mother's Spiderman underwear and in a thong and that the Respondent took two pictures of her in her mother's underwear. In a separate interview with the child AC, AC told CPS Gilmore that the Respondent watches him and his siblings while his mother works and that, while he and his siblings would be in the living room watching television, the Respondent and EE would be somewhere else in the home.
The Non–Respondent Mother testified that the Respondent lived with her and the children from 2011 until the filing of the instant case in court. The Non–Respondent Mother testified that the Respondent would take care of the children while she worked on Sundays and also after school during the week when she worked. The Non–Respondent Mother confirmed that she had Spiderman underwear. She further confirmed that in October 2016 she was in the hospital and that while she was in the hospital, the Respondent was home with the children. The Non–Respondent Mother also testified that she found pornography on the Respondent's phone sometime in 2016.
Ms. Maria K., a social worker at The Legal Aid Society, testified about three in-person meetings she had with EE. In the first two meetings, EE did not want to talk about the allegations of sexual abuse. In the third meeting, EE disclosed to her a series of inappropriate sexual behaviors by the Respondent that progressed over a period of months. Ms. K noticed that during the first two meetings with EE, she presented as very upbeat and cheerful. Ms. K testified that EE initially presented as upbeat and cheerful during the third meeting, but that while discussing the sexual abuse she was sad and started crying. Ms. K observed that when the topic of the sexual abuse was raised, EE would get quiet, look down, withdraw, and back up in her seat. Ms. K also observed that when EE stopped talking about the sexual abuse, she returned to her upbeat demeanor. EE stated to Ms. K that she did not want to testify in this proceeding because she was afraid. EE stated to Ms. K that the special victim's unit detective made her feel like it was all her fault and that she felt guilty. EE told Ms. K that she did not want to testify because she felt it would be too difficult and she felt like she couldn't move forward if she had to keep talking about the sexual abuse.
Ms. K testified that EE disclosed that, at some time in February of 2016, while EE and the Respondent were in his car, the Respondent started talking to EE about her reproductive system. A few weeks later, EE and the Respondent were in his room when the Respondent showed EE a pornographic video on his tablet of people having sex. A few weeks after that, the Respondent called EE to his room and told her to take off her clothes. The Respondent stood next to the bed, over EE, and touched her vagina with his fingers. EE stated that as he did that, she stared and the ceiling and the wall. A few weeks later, EE was watching television in the living room with her siblings when the Respondent brought EE to his bedroom. The Respondent took off his clothes, sat on the bed and was "touching his dick." The Respondent then took EE's hand and made EE touch his "dick." EE described in detail that the Respondent's penis was hot, soft, smooth and wiggling. EE also disclosed that on another occasion, the Respondent made EE wear her mother's underwear and he took pictures of her. On yet another occasion, the Respondent told EE to "suck his dick." EE told Ms. K that other than the first occasion, all the other instances happened at her home, while her siblings were present in the home watching television in the living room. Ms. K testified that during these incidents, EE said she was incredibly uncomfortable and didn't want to be there. EE said she would try to focus on other things, like looking at the ceiling and staring at the walls.
Ms. H, a therapist at the New York Center for Children, testified as an expert in social work with a specialization in child abuse. Ms. H testified that she has a master's in social work from Columbia University with a specialization that focused on treating children that had been abused. She testified that she had been trained on recognizing the signs of child abuse and trained on treating child abuse. Ms. H testified that she is working towards her clinical license and that she has completed many of the requirements but still needed to take the exam. For the past five years, Ms. H has worked with children who have been abused, as well as with their parents. Ms. H has testified in family court as an expert in social work previously. Ms. H testified that in her current position as a therapist at the New York Center for Children, the children that she works with have been referred to her because they were abused. Ms. H testified that about half of those children have been sexually abused.
Ms. H testified that, to a reasonable degree of professional certainty, in her expert opinion, EE had been sexually abused. Ms. H testified that, while she had provided therapy to the child EE, Ms. H did not base her opinion on her interactions with EE as a patient. Ms. H testified that she based her opinion on the information she obtained from her conversations with Ms. K and the attorney for the children regarding EE's symptoms, presentation and account of sexual abuse. Ms. H testified that EE's symptoms and presentation, as reported to her by Ms. K and the attorney for the children, are consistent with those of children who have been abused. Ms. H testified that EE demonstrated many of the common avoidance symptoms, including not wanting to discuss the abuse, and that EE demonstrated vivid memories of the abuse that were emotionally charged as if she were reliving them. Ms. H testified to the typical symptomology of child abuse which presents in four symptom clusters that are indicative of post-traumatic stress disorder : re-experiencing symptoms, avoidance, alterations in cognition, and changed in mood. Ms. H clarified that not all children meet the full criteria and that not all victims of abuse exhibit post-traumatic stress disorder.
Ms. H testified that it is very typical of sexual abuse perpetrators to start with progressive grooming in which they feel out the victim and talk about inappropriate things. The perpetrator then moves progressively towards showing pornography, undressing, and touching as the perpetrator gets more confident that the victim will not disclose the abuse and that the victim will comply. Ms. H testified that many victims of sexual abuse don't want to talk about the abuse and that when talking about that abuse, they become emotional, distressed and shut down. Ms. H also said that the emotionally relevant parts of the abuse remain vivid to the victim, like how EE could describe in detail how the Respondent's penis felt, but that other details become harder to remember, like the specific room the abuse takes place in. Ms. H testified that it was typical of abuse victims to disassociate and stare off at the ceiling during the sexual abuse, as it allows them to feel like they are not there. Ms. H also explained that it is very typical for a victim of sexual abuse to feel guilty and to feel like it is their fault. Ms. H further explained that most victims do not want to testify and that they feel like if they stop talking about the abuse, it will go away.
The Respondent testified that he has been in a relationship with the Non–Respondent Mother for approximately six years and that they have two children together (SF and MF). The Respondent stated that he has lived with the Non–Respondent Mother and the children for approximately five years. The Respondent testified that he did not have a good relationship with the child EE. He admitted to calling her an "idiot" and "stupid." He testified that she didn't want to do the things he asked her to do sometimes like change the younger children's diapers or clean out the refrigerator. The Respondent denied ever having an conversations with EE of a sexual nature, denied giving EE anything sexual to look at, denied any sexual contact with EE, denied asking EE to perform any sexual acts on him, denied asking EE to touch him in any sexual way, denied asking EE to put on her mother's underwear. The Respondent confirmed that he watched the children while the Non–Respondent Mother was hospitalized in October of 2016. The Respondent confirmed that he did own a car and that he had used it to pick up the children from school. The Respondent initially denied watching porn but then admitted he had watched it on his phone "once, twice maybe.
LEGAL ANALYSIS AND DISCUSSION
In cases where the trial court is primarily confronted with issues of credibility, as it is here, its factual findings must be accorded considerable deference on appeal (see Matter of Cheryale B. [Michelle B.], 121 AD3d 976, 977 [2nd Dept 2014] ) and shall not be disturbed unless unsupported by the record (see Matter of Elijah J. [Yvonda M.], 105 AD3d 449 [1st Dept 2013] ). The Court had ample opportunity to observe the demeanor and credibility of each witness in this case. CPS Gilmore testified credibly about her involvement in the case, including the interview she observed between the detective and EE, as well as CPS Gilmore's own conversation with the child AC. The Court also credits the testimony of the Non–Respondent Mother, Ms. K and Ms. H. The testimony of all of the Petitioner's witnesses, and all of the attorney for the children's witnesses, cross-corroborated one another.
Conversely, the Court credits only portions of the Respondent's testimony and finds that other portions of his testimony were self-serving and incredible. The Respondent corroborated the statements of the Non–Respondent Mother and EE that he watched the children while the Respondent worked and that he owned a car. The Respondent also admitted that he watched pornography at least once or twice. The Court finds his wholesale denial of his sexual abuse of the child EE incredible.
In a child protective proceeding commenced under Article Ten of the Family Court Act, the petitioner bears the burden of proving the allegations in the petition by a preponderance of the evidence (see Family Ct Act § 1046[b][i] ; Matter of Tammie Z. , 66 NY2d 1,2 [1985] ). While the statute does not define the term "preponderance of the evidence," the court is required to determine whether the allegations in the petition are "more probably true than untrue." Matter of Jamie TT. , 191 AD2d 132, 134 (3rd Dept 1993). To satisfy their burden, the petitioner may rely upon prior out-of-court statements of the subject children, provided that they are properly corroborated (see Family Ct Act § 1046 [a] [vi]; Matter of Mateo S. [Robin Marie Y.] , 118 AD3d 891, 892 [2nd Dept 2014] ). The testimony of the child shall not be necessary to make a fact-finding of abuse or neglect. Id. The Family Court has considerable discretion in deciding whether out-of-court statements made by children have been reliably corroborated and whether the record as a whole supports a finding of abuse or neglect (see Matter of Nicole V., 71 NY2d 112, 119, [1987] ; Matter of Alexander M. [Benjamin M.] , 88 AD3d 794, 795, [2nd 2011] ). The New York State Legislature envisioned a broad, flexible standard of corroboration for a child's out-of-court statements. The Court of Appeals had held that corroboration is not required because statements of children are generally unreliable but rather, corroboration is required because the out-of-court statements are hearsay and the statute requires some further evidence to establish their reliability. Matter of Nicole V., 71 NY2d 112, 118 [1987].
Corroboration is defined as any evidence tending to support the child's out-of-court statement (see Family Ct Act § 1046 [a] [vii] ). In the Matter of Kerri K. 135 AD2d 631 (2nd Dept 1987), the court stated that the corroboration requirement is a flexible one and additional kinds may be deemed adequate on a case by case basis. For example, the court in Matter of Kerri K. found corroboration where a victim was present at the home and in the company of the respondent during relevant time periods, observations of a child's behavioral changes, and child's other consistent statements. Courts have also found corroboration when an expert witness testified that, in their expert opinion, a child's symptoms or presentation, is consistent with child abuse. For example, in the Matter of Hadley C. , 137 AD3d 1524 (3rd Dept 2016), the petitioner presented testimony of an investigator who testified to a child's disclosures of sexual abuse and expert testimony was taken from a psychologist who testified to statements made by the child which were consistent with the investigator's testimony. The expert further testified that based on the child's detailed description of the alleged abuse, the child's account was consistent with accounts of known sexual abuse victims. The court held that expert testimony showing "that the child's statements parallel those normally made by abuse victims" is sufficient to corroborate a child's unsworn statements. Similarly, in the Matter of Nikita W. , 77 AD3d 1209 (3rd Dept 2010), the court upheld a finding of abuse and credited the testimony of an expert who testified to the child's detailed descriptions of what she was wearing, conversations she had, and how the respondent allegedly touched her. In making this determination, the expert testified that her analysis does not involve a credibility determination but rather a determination as to whether certain elements found in accounts of known sexual abuse victims are also present in the alleged victim's account. The court further stated that in these circumstances, the court is "vested with considerable discretion" in making such a determination.
In the present case, the Court finds that the child EE's out-of-court statements to the detective, in evidence through the testimony of CPS Gilmore who was present when the statements were made, are partially corroborated by a) the testimony of the Non–Respondent Mother, b) the testimony of CPS Gilmore regarding the child AC's statements, and c) the consistency in EE's statements to Ms. K and the detective (see for example, Matter of Emily S. (Jorge S.) , 146 AD3d 599 [1st Dept 2017] wherein the court held that, while repetition is not itself sufficient corroboration, the child's consistent statements to more than one person enhances the credibility of the child's statements). EE's out-of-court statements are partially corroborated by the testimony of the Non–Respondent Mother who confirmed that the Respondent had access to the EE during the time EE stated the abuse occurred. The Non–Respondent Mother testified that the Respondent takes care of the children while she works, that she was hospitalized in October 2016, and that the Respondent watched the children while she was in the hospital. EE's out-of-court statements are also corroborated by the Non–Respondent Mother's testimony that the Non–Respondent Mother owns Spiderman underwear, which is the specific type of underwear EE specified that the Respondent made her wear before photographing her. The Non–Respondent Mother also testified that the Respondent watches pornography which partially corroborates EE's statement that the Respondent showed her pornography. EE's statements are also partially corroborated by the child AC's statements to CPS Gilmore that while the Respondent watched the children, he and his siblings would be in the living room watching television while the Respondent and EE were in another part of the home. The Respondent himself corroborates EE's out-of-court statement that he watched the child EE while the Non–Respondent Mother worked and that he had a car. The Respondent also admitted that he had watched pornography.
Further, and most significantly, EE's out-of-court statements are corroborated by the testimony of Ms. H who testified that, within a reasonable degree of professional certainty, it was her opinion that EE has been sexual abused as her behavior was consistent with that of a sexually abused child (see Matter of Hadley C., supra; see also Matter of Nikita W. , supra). The Court finds that Ms. H was qualified to provide this expert opinion because of her background, including specialized training in child abuse, as well as her professional experience, including her current position in treating child victims of sexual abuse. The Court finds that Ms. H's experience and education qualify her to determine, within a reasonable degree of professional certainty, that EE's symptomology is consistent with having been sexually abused. Ms. H based her expert opinion on the information she obtained from conversations with Ms. K and the attorney for the children, which is analogous to when a medical expert renders an expert opinion based on information conveyed by other medical staff or information contained in reports and records. The expert need not directly treat or interview the patient who is the subject of their expert opinion. Further, the information Ms. H relied on in forming her expert opinion is part of the record before this Court as it is contained within the credible testimony of Ms. K.
Petitioner Established that the Respondent is a "Person Legally Responsible" for the children EE & AC
Family Court Act Section 1012 (g) defines, in pertinent part, a "person legally responsible" as any person responsible for the child's care at the relevant time including any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child. FAM. CT. ACT § 1012(g). In determining whether a respondent is a "person legally responsible" under Family Court Act Section 1012 (g), the court must consider such factors as the frequency and nature of the contact between the child and the respondent, the nature and extent of control exercised by the respondent over the child's environment, the duration of the respondent's contact with the child, and respondent's relationship to the child's parent. In re Yolanda D. , 88 NY2d 790 (NY 1996) ; Matter of Janiyah T., 26 Misc 3d 1208(A) (NY Fam. Ct. 2010).
The Respondent concedes that he is a personally legally responsible for the children EE and AC pursuant to Family Court Act Section 1012(g). Indeed, the Court finds that the Respondent is a personally legally responsible for the children EE and AC pursuant to Family Court Act Section 1012(g) in that he has been in a relationship with the children's mother for over five years, has lived with the children for over five years, has financially supported the children and takes care of the children while the children's mother works.
Petitioner Established that the Respondent Sexually Abused the child EE
Family Court Act Section 1012(e) (iii) defines an "abused child" as one against whom a parent or personally legally responsible has committed an offense defined in Section 130 of the Penal Law. FAM. CT. ACT § 1012(e)(iii). In the instant case, the Petitioner alleges that the Respondent sexually abused the child EE, pursuant to Family Court Section 1012(e) (iii), in that he committed sex offenses against her as defined by Penal Law Section 130.52 (forcible touching) and Penal Law Section 130.55 (sexual abuse in the third degree)
In New York State, a person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire. NY Penal Law § 130.52. Forcible touching includes squeezing, grabbing or pinching. Id. The Court finds that the Respondent committed the offense of forcible touching, as defined in Penal Law Section 130.52, by intentionally, and for no legitimate purpose, forcibly touching the child EE's breast and vagina, for the purpose of gratifying his sexual desire. The child's out-of-court statements to the detective, in evidence through the testimony of CPS Gilmore who was present when the statements were made, as well as her out-of-court statements to Ms. K, were sufficiently corroborated by the other testimonial evidence as explained above. The Respondent failed to provide any innocent reason or explanation for touching the child EE's sexual parts as he denied touching the child EE at all. The Court finds the Respondent's outright denial of touching the child EE incredible. In the absence of any innocent reason or explanation for the Respondent to be touching the child EE's sexual parts, the Court is permitted to infer from the conduct itself that the Respondent acted with the purpose of gratifying his sexual desire. In re Keisha McL , 261 AD2d 341, 342 (1st Dept 1999). Gratification may be inferred from the totality of the circumstances. Matter of Daniela R. (Daniel R.), 118 AD3d 637 (1st Dept 2014).
In New York State, a person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent except that in any prosecution under this section, it is an affirmative defense that (a) such other person's lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old and (b) such other person was more than fourteen years old, and (c) the defendant was less than five years older than such other person. NY Penal Law § 130.65. Sexual contact is defined as any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. NY Penal Law § 130.00. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed. Id. The Court finds that the Respondent committed the offense of sexual abuse in the third degree by subjecting the child EE to sexual contact. EE told the detective, as well as Ms. K, that the Respondent touched her vagina and that he made her touch his penis. The child's out-of-court statements to the detective, in evidence through the testimony of CPS Gilmore who was present when the statements were made, as well as her out-of-court statements to Ms. K, were sufficiently corroborated by the other testimonial evidence as explained above.
Petitioner Established the Derivative Neglect of the Other Children
Family Court Act Section 1046 (a)(i) states that evidence of the abuse or neglect of one child can be considered in determining whether other children in the household were abused or neglected. FAM. CT. ACT § 1046(a)(i). Even in the absence of direct evidence of actual abuse or neglect of a second child, a derivative finding may 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. Matter of Vincent M. , 193 AD2d 398 (1st Dept 1993). However, the statute does not mandate a finding of derivative neglect. Matter of Daniella HH , 236 AD2d 715 (3rd Dept 1997) ; Matter of Rasheda S. , 183 AD2d 770 (2nd Dept 1992).
Evidence of the sexual abuse of one child by itself sometimes may not establish a case of derivative neglect of others. Matter of Akia "KK", 282 AD2d 839 (3rd Dept 2001). In determining whether the sexual abuse of one child establishes derivative neglect of another, the courts have considered such factors as the nature of the duration of the direct abuse, the circumstances surrounding its commission and whether, on the whole, it can be said to evidence fundamental flaws in the respondent's understanding of the duties of parenthood. Matter of Amanda LL , 195 AD2d 708 (3rd Dept 1993). In cases of sexual abuse, courts often make a derivative finding as to a child who is present in the home at the times the sexual abuse occurred, regardless of whether the child saw the sexual abuse of the other child. In Matter of Brandon M. (Luis M.) , 94 AD3d 520 (1st Dept 2012), the court made derivative findings when one of the subject children witnessed the sexual abuse and the other child was present in the apartment at the time the abuse took place. Likewise, in Matter of Jani Faith B. (Craig S.) , 104 AD3d 508 (1st Dept 2013), the First Department upheld a finding of derivative abuse of the appellant's son where the appellant's stepdaughter testified that the appellant's son was present in the apartment and had walked into the room while appellant was sexually abusing the stepdaughter. Likewise, courts have found derivative neglect in cases where the abuse or neglect was repeated (see In re Rebecca X., 18 AD3d 896 [3d Dept 2005] ), involved violence (see Matter of Christina BB. , 305 AD2d 735 [2003] ), or was perpetrated on multiple victims (see Matter of Shaun X. , 300 AD2d 772 [2002] ).
The evidence demonstrates that the Respondent sexually abused the child EE while the other children were in the home and while he was the sole caretaker for all the children. Further, the evidence demonstrates that the Respondent engaged in a course of inappropriate conduct that included multiple instances of sexually abusing the child EE. The Court finds that, given that the abuse happened when the other children were in the home, and that the abuse happened while the Respondent was supposed to be the sole person taking care of the children, and that the Respondent's action involved multiple incidences of abuse, derivative findings are appropriate. The Court finds that the evidence of the Respondent's abuse demonstrates that the Respondent's parental judgment and impulse control are so defective as to create a substantial risk of harm to any child in his care, and therefore, the Court finds that the Respondent derivatively neglected the children AC, MF and SF (see Matter of Kylani R. [Kyreem B], 93 AD3d 556 [1st Dept 2012].)
CONCLUSION
WHEREFORE, based upon the foregoing, this Court finds that the Petitioner has established, by a preponderance of the evidence, that the Respondent sexually abused the child EE, pursuant to Family Court Act Section 1012(e) (iii), in that the Respondent committed sex offenses against her as defined by Penal Law Sections 130.52 (forcible touching) and Penal Law Section 130.55 (sexual abuse in the third degree) by touching her breast and vagina, and by forcing her to touch his penis. Further, the Court finds that the Petitioner has met their burden in establishing by a preponderance of the evidence that the children AC, MF and SF were derivatively neglected as a result of the Respondent's sexual abuse of the child EE.
This constitutes the decision of the Court.