Opinion
14866-14867 Dkt. Nos. NA-00502/17, NA-00503/17 Case Nos. 2020-00005, 2020-00606
12-16-2021
In the MATTER OF T.S., and Another Children Under Eighteen Years of Age, etc., K.A., et al., Respondents–Appellants, v. S.U., Respondent, v. Administration for Children's Services, Petitioner–Respondent.
Daniel R. Katz, New York, for K. A., appellant. Larry S. Bachner, New York, for F. A., appellant. Georgia M. Pestana, Corporation Counsel, New York (Nwamaka Ejebe of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the children.
Daniel R. Katz, New York, for K. A., appellant.
Larry S. Bachner, New York, for F. A., appellant.
Georgia M. Pestana, Corporation Counsel, New York (Nwamaka Ejebe of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the children.
Kapnick, J.P., Friedman, Gonza´lez, Rodriguez, Pitt, JJ.
Order, Family Court, New York County (Maria Arias, J.) entered on or about December 11, 2019, which, to the extent appealed from as limited by the briefs, after a hearing, found that respondents abused the child T.S. and derivatively abused the child S. U., unanimously modified, on the law, to vacate the finding of derivative abuse, and otherwise affirmed, without costs.
The finding that respondents abused their child T.S. is supported by a preponderance of evidence (see Family Court Act § 1046[b][1] ; 1012[e]). The court providently exercised its discretion in determining that T.'s out-of-court videotaped interview describing sexual abuse by her paternal grandfather, starting as early as age eight, and respondents' inaction in response was properly corroborated by the examining psychiatrist's testimony that T.'s behavior was consistent with having been sexually abused ( Matter of Nicole V., 71 N.Y.2d 112, 118–119, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ; Matter of Christina F., 74 N.Y.2d 532, 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294 [1989] ). The consistency of her statements about the sexual abuse by the grandfather enhanced the reliability of the statements ( Matter of Emily S. [Jorge S.], 146 A.D.3d 599, 44 N.Y.S.3d 743 [1st Dept. 2017] ). Respondents' own statements provide corroboration of T.'s account of their reaction to her eventual disclosure of the sexual abuse that had occurred when she was younger and her request that the grandfather not be allowed to continue to reside with them.
After T. disclosed the grandfather's earlier sexual abuse, respondents failed to protect her by removing the grandfather from the home, instead directing her not to tell anyone about the abuse because it would bring shame upon the family, failed to ascertain why T. was hospitalized on two separate occasions, and failed to obtain help for her, even when notified that she was cutting herself and was clearly decompensating after the grandfather moved back into the home (see Family Court Act § 1012[e][iii] ; Matter of Sania S. [Marcia McG.-W.], 143 A.D.3d 545, 545, 39 N.Y.S.3d 148 [1st Dept. 2016], lv denied 28 N.Y.3d 910, 2016 WL 7236819 [2016] ). The fact that the grandfather did not abuse T. again does not preclude the finding of abuse, since respondents endangered T. by creating a substantial risk of physical injury likely to cause protracted impairment of her physical or emotional health ( Family Court Act § 1012[e][ii] ; see Matter of Angelique H., 215 A.D.2d 318, 627 N.Y.S.2d 31 [1st Dept. 1995] ).
However, the determination that respondents derivatively abused their then 17–year–old son is not supported by a preponderance of evidence (see Matter of Itzel A. [Jose V.], 188 A.D.3d 478, 132 N.Y.S.3d 292 [1st Dept. 2020] ). There is no evidence that the grandfather's sexual abuse was ever directed at S. U., who only became aware of the abuse when T. told him about it several years after the fact. While respondents failed to protect T. from harm, there is no evidence that S. was ever at risk of being harmed by the grandfather or by them.