Opinion
8105
01-15-2019
IN RE JEREMY B. and Others, Dependent Children Under Eighteen Years of Age, etc. Jeffrey B., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent, v. Melissa N., Respondent.
Steven N. Feinman, White Plains, for appellant. Zachary W. Carter, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
Steven N. Feinman, White Plains, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
Sweeny, J.P., Richter, Kapnick, Gesmer, Kern, JJ.
Family Court properly concluded that petitioner demonstrated by a preponderance of the evidence that appellant sexually abused the subject child Jalissa B. (see Family Ct Act § 1046[b][i] ) and derivatively neglected his biological son Jeremy B., and Rene J.T., a child for whom he is legally responsible, based on Jalissa's out-of-court statements to the physician that attended her in the emergency room and the detective assigned to her case (see Family Ct Act § 1046[a][vi] ; Matter of Nicole V., 71 N.Y.2d 112, 117, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ), plus her medical records that corroborated her statements (see Matter of Skylean A.P. [Jeremiah S.], 136 A.D.3d 515, 26 N.Y.S.3d 517 [1st Dept. 2016], lv denied 27 N.Y.3d 907, 36 N.Y.S.3d 620, 56 N.E.3d 900 [2016] ; Matter of Marelyn Dalys C.-G. [Marcial C.], 113 A.D.3d 569, 979 N.Y.S.2d 519 [1st Dept. 2014] ). Having reviewed the record, we find no basis for disturbing the court's credibility determinations (see Matter of Markeith G. [Deon W.], 152 A.D.3d 424, 424, 58 N.Y.S.3d 359 [1st Dept. 2017] ).
A preponderance of the evidence supports the Family Court's determination that appellant derivatively neglected the other two children. Appellant's sexual abuse of Jalissa demonstrated such an impaired level of parental judgment as to create a substantial risk of harm to the children (see Matter of Genesis A. [Candido A.], 150 A.D.3d 616, 617, 56 N.Y.S.3d 281 [1st Dept. 2017] ; Matter of Estefania S. [Orlando S.], 114 A.D.3d 453, 454, 979 N.Y.S.2d 582 [1st Dept. 2014] ).
Appellant failed to preserve for appellate review his argument that he was not a person legally responsible for Rene J.T. (see Matter of Alijah S. [Daniel S.], 133 A.D.3d 555, 556, 21 N.Y.S.3d 206 [1st Dept. 2015], lv denied 26 N.Y.3d 917, 26 N.Y.S.3d 762, 47 N.E.3d 92 [2016] ), and we decline to consider it.