Katelyn R. v. Daniel N.

Full title: In the Matter of Kylie R. and Katelyn R., Children Abused by v. Daniel N.…

Court: Family Court, Bronx County

Date published: Jul 19, 2016

2016 N.Y. Slip Op. 51223 (N.Y. Fam. Ct. 2016)

Opinion

NA-XXXX/14

07-19-2016

In the Matter of Kylie R. and Katelyn R., Children Abused by v. Daniel N., Respondent.

For the Administration for Children's Services: Tiffany Wichman, Esq. Bronx Family Court Legal Services NYC Administration for Children's Services 900 Sheridan Avenue, 6th Floor Bronx, New York 10451 For the Respondent Father: James Kenniff, Esq. Family Defense Practice The Bronx Defenders 360 E. 161st St. Bronx, NY 10451 For the Children: Helen Kloogman, Esq. Legal Aid Society — Juvenile Rights Practice 900 Sheridan Avenue, Rm. 6C-12 Bronx, New York 10451

Robert D. Hettleman, J.

For the Administration for Children's Services: Tiffany Wichman, Esq. Bronx Family Court Legal Services NYC Administration for Children's Services 900 Sheridan Avenue, 6th Floor Bronx, New York 10451 For the Respondent Father: James Kenniff, Esq. Family Defense Practice The Bronx Defenders 360 E. 161st St. Bronx, NY 10451 For the Children: Helen Kloogman, Esq. Legal Aid Society — Juvenile Rights Practice 900 Sheridan Avenue, Rm. 6C-12 Bronx, New York 10451 Robert D. Hettleman, J.

This decision memorializes the oral decision I made on the record in court on May 11,

2016. At the conclusion of the trial in this case, I found that the Administration for Children's Services ("ACS") proved by a preponderance of the evidence that the respondent, Mr. Daniel N., sexually abused the child Kylie R. (DOB __/__/2010) and derivatively abused the child Katelyn (DOB __/__/2013).

I. PROCEDURAL POSTURE

ACS filed this petition on October 20, 2014, alleging that Mr. N. sexually abused Kylie on one occasion and derivatively abused Katelyn. The trial began on April 21, 2015 and continued on May 11, 2016.¹ ACS called as witnesses (1) the children's mother, Ms. Rodiles, and (2) Dr. Anne Meltzer, an expert in child psychology, early child development, and young children's knowledge of sexual acts. ACS moved into evidence Petitioner's Exhibit ("Pet's Ex.") 1, birth certificates for both children; Pet's Ex. 2, Kylie's medical records from Lincoln Hospital; and Pet's Ex. 3, Dr. Meltzer's curriculum vitae. Neither the attorney for the child nor Mr. N. called any witnesses or presented any evidence. II. THE EVIDENCE AT TRIAL A. Ms. R.

1 The delay between trial dates was caused by ACS requesting time to consult with and call an expert witness — something they needed to do after the testimony of Ms. R. (so that the expert could review that testimony). Initially, ACS retained and began to work with one expert, but when I learned of the identity of that expert, I informed the parties that due to my prior work with that person, I did not feel that I could fairly preside over a trial with her as a witness. Accordingly, ACS had to obtain a new expert and start the process again.

Ms. R. testified that she is the mother of both children. Mr. N. is the father of Katelyn but not of Kylie, and Mr. N. had lived with Ms. R. and the children for a long period of time, including for about one year leading up to October of 2014. She said that Mr. N. acted as a father in the household in all respects — supporting the family, cooking, cleaning, caring for the children at times, playing with them, etc. Kylie called him "daddy," and Mr. N. treated Kylie "like his daughter."

Ms. R. further testified that on October 4, 2014, she had plans to go out with some co-workers and arranged for a babysitter to watch the girls. She dropped the kids at the babysitter's around 7:30 p.m., and she later spoke to Mr. N., who said he had picked them up and brought them home. When Ms. R. arrived at home at approximately 1:00 a.m. (now Sunday, October 5th), both children were sleeping in the same bed with Mr. N. — the parents' bed. Kylie was on one side, Katelyn was in the middle, and Mr. N. was on the edge. All were asleep. Ms. R. stated that normally, Katelyn slept in a playpen in the parents' room, and Kylie slept in her own room in her own bed.

Later in the morning of October 5th, Mr. N. left for work, Ms. R. and the children woke up, had breakfast, watched movies, ate, and had a normal day. Notably, a co-worker of Ms. R. was present for the entire day with the family while Mr. N. was at work.

On October 6th, Ms. R. came home from work around 6:15 p.m., picked the children up from daycare, and brought them home. At some point, Katelyn was sleeping in the parents' room, and Ms. R. and Kylie had a conversation. Kylie told her mother that she did not like it when Ms. R. went out. Ms. R. asked why this was, and Kylie disclosed the following: that Mr. N. had told her to go change clothes and to put her pajamas on, which Kylie did. Then, Kylie said that Mr. N. put his "parts" on her "cuca" and "butt." Ms. R. asked Kylie what she meant, and Kylie responded that he "put" his "triangle shape" or "triangle thing," whereupon Kylie demonstrated by pointing to the area of her own vagina. Kylie then described to Ms. R. that Mr. N. grinded his hips and body against her, and she demonstrated to her mother a back and forth motion with her own hips and body. Kylie told her that he had touched both her buttocks and vagina, motioning to her vaginal area and buttocks, and when Kylie said "triangle thing," Kylie pointed to her own vaginal area with her hands. Ms. R. asked Kylie if Mr. N. had ever touched her before, to which Kylie replied "no." Finally, Ms. R. said that when Kylie made these disclosures, Kylie was "playful" and "smiling," although Ms. R. began to cry during the conversation.

Ms. R. then testified that when she had left the children with the babysitter on the 4th, Kylie had on pants and a shirt, but when she returned and found Kylie sleeping in the parents' bed, Kylie had pajama pants on. Ms. R. said she had never heard Kylie use the term "triangle shape" before in reference to a private part, and that Kylie had never described anything like this before. Ms. R. stated that she assumed that when Kylie said "triangle," Kylie was referring to Mr. N.'s private part.

The next day, Ms. R. told Kylie not to say anything and followed their regular daily routine. Ms. R. went to work, consulted her boss, and then picked up Kylie and took her to Lincoln Hospital for treatment. In addition, they returned to Lincoln a few days later to get a physical examination by a child advocacy center ("CAC") doctor.

Ms. R. said that she did not speak to Kylie about the allegations again because she was advised by a social worker from the hospital to avoid doing so, as that might confuse the child. Since October, Ms. R. has not noticed any significant behavioral changes in Kylie, and Kylie has not said anything else to her about the allegations. Ms. R. said that the family did have cable television in the home, including at one point having the pay channel Cinemax, and that after about 9 or 10 p.m., sexual acts are "simulated" on that channel. Ms. R. said that she had never known the children to have seen such acts, either on television or in person. She said that Kylie only watched one channel, and that Kylie had only learned to turn the television on and off and to change channels a few months before Ms. R.'s testimony (in April of 2016). In addition, Kylie did not know how to use the internet or watch videos on the family's tablet in October of 2014. Ms. R. testified that she and Mr. N. did not have sex when the children were awake. B. Pet's Ex. 2 — Medical Records for Kylie

According to the medical records, Kylie was seen on October 7, 2014, and again on October 9th, October 16th, and October 27th. In certain parts of the records, the notes describe that some of the information was obtained from Ms. R., but the records are specific in describing the child's statements distinct from those of the mother.

On October 9th, Kylie stated that her "daddy" had touched her "kuka" and "butt" with his "thing." When describing "his thing," she pointed to her own genitalia. She said that it felt "bad." On October 16th, Kylie described that "daddy gave her a bad touch." She said that he took off her pants and panties, as well as his own, and "touched [her] kuka with his shape." When asked about Mr. N.'s "shape," the child drew a diamond shape. She also said that "Daddy's kuka touched me here" and pointed to her own private part and buttocks. The child said it felt "hard" and that she did not like it, and that it happened when her mother was not home. On October 27th, Kylie said that her "dad touched her," that she did not like, it made her sad, and that it was a bad touch.

The records noted that the child had "limited" understanding of the nature of a truth and a lie, and they describe that the child at time was observed to "mimic some words" and to guess at certain questions. On October 27th, however, the records note that the child was able to "discuss and differentiate" between a good touch and a bad touch. C. Dr. Meltzer

Dr. Meltzer is a licensed child psychologist who has met with or evaluated over 800 children, including roughly 100-150 under the age of five, in connection with child sexual abuse. This has mainly been for the purpose of conducting "sexual abuse assessments," sometimes referred to in Family Court as "validations," and an important part of these assessments is understanding a child's sexual knowledge. That is, when a young child expresses knowledge of sexual acts or terms, an evaluator would want to know where such knowledge was obtained and whether or not it is indicative of abuse. In virtually all of her evaluations of children, particularly pre-teens, Dr. Meltzer has specifically assessed their knowledge of sexual acts. She acknowledged that there is no medical specialty covering children's knowledge of sexual acts, but she is familiar with literature in the area.

All parties consented to her being deemed an expert in child psychology, but Mr. N.'s attorney objected to her being an expert in early child development and young children's knowledge of sexual acts. Over this objection, I deemed her an expert in all three areas. Notably, Dr. Meltzer never met or saw Kylie. Rather, her testimony was based upon a review of documents provided by ACS — specifically, the ACS case records, the medical records in Pet's Ex. 2, and the trial testimony of Ms. R..

Dr. Meltzer testified that in her expert opinion, Kylie's verbal description of the acts, as well as Kylie's physical demonstration of the grinding motion, are not within the normal realm of what a three year old child would know. She further opined that she would not expect a three year old to describe such acts unless they had experienced it in reality. She based these opinions on the some of the words and details described by the child, the child's statement that she felt something "hard," the child's age, the fact that the child described it as "bad" touching, and the literature and her experience with children's knowledge of sexual acts.

In response to additional questioning, Dr. Meltzer said that her opinion would remain the same even if the child had accidentally been exposed to sexual behavior on television or in person. First, she noted that it would be "unusual" for a child to say that such acts happened to her, since children do not usually talk about things happening to them that they might consider scary or unusual. In addition, she testified that in order for a child of Kylie's age to be able to describe such acts, a child would likely have to have seen something like that "any number of times." But she conceded that all of her opinions depend on the context and myriad factors present in a given situation. And in response to a question from ACS, asking whether a child who observed an act on television would be able to describe genitalia as being "hard," Dr. Meltzer said that it would be possible for a child to have a sensory perception about something even if it had not happened to her personally. III. FINDINGS OF FACT A. Ms. R.

I found Ms. R.'s testimony to be very credible and compelling. She answered questions in a straightforward manner, she was knowledgeable and detailed about the events described, and she was balanced in her testimony. For example, she did not disparage Mr. N. in any way, nor did she vouch for Kylie; she demonstrated no bias or motive to fabricate or exaggerate. In addition, she was quite open and honest about what the child said, as well as about Kylie's potential exposure to sexual behavior on television or in person.

Most importantly, Ms. R.'s testimony was corroborated by the other evidence in the case. The medical records document that Kylie made very similar statements and allegations to the treating staff, as well as that Ms. R. took the child for treatment on October 7th, corroborating the nature and timing of the child's disclosure. B. Kylie's Statements

I found Kylie's statements, made to Ms. R. and to hospital and medical personnel, to be credible. At the outset, I note that Kylie was only three years old at the time she disclosed this information and was interviewed about what happened. This fact alone can cut both ways in assessing credibility. On the one hand, a child of this age does not have the language capability to fully communicate things that have occurred, and undoubtedly a three year old does not have a developed sense of morality, much understanding of the importance of telling the truth, or an appreciation for the consequences of telling a falsehood in a matter of this importance. On the other hand, unlike an adult, such a young child cannot likely feel the need for nor pursue a plan of revenge, engage in meaningful manipulation of others on this type of subject matter, or be able to persist in a set of lies on such topics without being discovered in an investigation.

But even to a lay person, Kylie's statements and demonstrations of sexual conduct are remarkably detailed and specific for a child of her age. She described him touching her "cuca" and buttocks with his private parts, and grinding his body against hers in a repeated motion. Moreover, these details do not appear to be coached in any way. Kylie's words — like "thing," "triangle," and "shape" — are words that no adult would likely use or even conjure up in describing these acts. The same is true of her drawing of a diamond shape at the CAC. If an adult were coaching her to fabricate allegations against Mr. N., one would not expect the child to describe it in this way or in these terms. To the contrary, her descriptions seem consistent with a three year old child's limited vocabulary and understanding of these acts.

Similarly, Kylie's demeanor in disclosing and her behavior since the disclosure support her credibility and that of Ms. R.. On October 6th, Kylie told her mother what occurred for the first time, and Ms. R. described the child's demeanor at the time as "playful" and "smiling." Plainly, Mr. N.'s actions were troubling the child enough to make her say something to her mother, but it makes sense that Kylie might not have appreciated the gravity of the conduct at that time. Indeed, it was Ms. R. who began to cry, told the child not to talk about it any further that day, and took Kylie to the hospital. In later disclosures, the child began to describe the conduct as "bad," perhaps a reflection of her mother's reaction and the involvement of doctors and other adults. In this same vein, if Ms. R. were fabricating or exaggerating her testimony to try to bolster the child's statements, one would expect that she would have described Kylie as upset when disclosing or exhibiting significant behavioral changes since the allegations came to light. But this was not the case.

Next, I find no evidence of any motive for the child or Ms. R. to make false accusations. Nothing in the testimony or evidence revealed any acrimony between Ms. R. or Kylie and Mr. N. Rather, the family appeared to be a loving and happy one, where Mr. N. supported the family and cared for the children without incident.

An additional factor in support of the credibility and veracity of Kylie's statements is the fact that there was no testimony or evidence of any kind that Kylie was exposed to sexual behavior — via television, computer, or in person.

Moreover, Kylie's statements are corroborated by other evidence in the case. I will discuss the legal standards for corroboration below, but there were many facts brought out at trial that support Kylie's version of events. First, Ms. R. described that Mr. N. had the opportunity to abuse the child: she had gone out for the evening, and Mr. N. was alone with the children after picking them up from the babysitter. Second, Ms. R.'s observations upon returning home are important: (a) that both children were asleep in the same bed as Mr. N.; (b) that the children normally do not sleep in that bed or with Mr. N.; and (c) that Kylie had on pajamas rather than the pants and shirt she had on when Ms. R. left. Third, Kylie made a relatively prompt disclosure of the abuse to her mother, and importantly, this was wholly unprompted by Ms. R.. It was Kylie who mentioned that she did not like when her mother left, prompting Ms. R. to ask why. Fourth, Kylie's statements to her mother and in the medical records — on several different occasions — are very consistent with each other. Fifth, as described above, Kylie's language and descriptions themselves — even without expert testimony — support the credibility and accuracy of her statements. And finally, the expert opinion of Dr. Meltzer on this same issue corroborates Kylie, confirming that Kylie's description of sexual acts is not consistent with her age, with observing such conduct on television or in person, or with mimicking something she had seen elsewhere. C. Mr. N.'s Failure to Testify

Mr. N. did not testify in the case, and I draw the strongest negative inference from his failure to do so. See, e.g., In re Leah M., 81 AD3d 434 (1st Dept. 2011); Matter of Nicole H., 12 AD3d 182 (1st Dept. 2004); Matter of Keara MM., 84 AD3d 1442 (3rd Dept. 2011). IV. LEGAL STANDARDS AND FINDINGS A. Person Legally Responsible

At the trial in this case, the evidence was undisputed that Mr. N. is the father of Katelyn and essentially the stepfather of Kylie. He lived with the family for a prolonged period of time, he performed all the duties of a parent, and Kylie called him "daddy." Accordingly, ACS proved by a preponderance of the evidence that Mr. N. is the "functional equivalent" of a parent to Kylie and thus a person legally responsible for her care. See Matter of Trenasia J., 25 NY3d 1001, 1004 (2015). B. Sexual abuse

Under the Family Court Act, an "abused child" is "a child less than eighteen years of age whose parent or other person legally responsible for her care . . . commits . . . an offense against such child defined in article one hundred thirty of the penal law . . . ." FCA § 1012(e)(iii). Under Penal Law §130.65(3), a person is guilty of Sexual Abuse in the First Degree when "he or she subjects another person to sexual contact . . . when the other person is less than eleven years old." "Sexual contact" is defined in P.L. §130.00(3) as the "touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. 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 . . . ." P.L. §130.00(3). Under the caselaw, "intimate parts" can include parts of the body that may or may not be in close proximity to the sexual organs, depending on the location on the body and the context of the touching. That is, a finder of fact can consider how, where and why the touching took place, anything said by either of the parties involved, and any other facts and circumstances surrounding the touching. See, e.g., Matter of Michael J., 267 AD2d 126 (1st Dept. 1999) (kissing); Matter of David V., 226 AD2d 319 (1st Dept. 1996) (kissing using the tongue); see also People v. Sene, 66 AD3d 427(1st Dept 2009) (defendant's mouth touching the victim's neck); People v. Manning, 81 AD3d 1181 (3rd Dept 2011) (sexual assault began when defendant's hands moved up the leg into the area of the thigh); People v. Reome, 309 AD2d 1067 (3rd Dept 2003) (touching the victim's breast, thigh, buttocks, and vagina); People v. Gray, 201 AD2d 961 (4th Dept 1994) (defendant touching the victim's "upper leg"). As for the element of sexual gratification, such a state of mind can be inferred from the acts themselves and all of the surrounding circumstances. See People v. Teicher, 52 NY2d 638 (1981); Matter of Jani Faith B., 104 AD3d 508 (1st Dept. 2013). In the instant case, Kylie's statements describe sexual contact by Mr. N. Whether with his hand, his groin, or his private parts, touching the child's vaginal area and buttocks constitutes "sexual contact." In addition, the element of sexual gratification is plain given the nature of the touching; that it occurred at night and in the respondent's bed while the mother was away; and that it was a "bad touch" that made the child feel sad. In addition, I consider that Mr. N.'s failed to testify and offer a reasonable explanation for the touching. See Matter of Dorlis B., 132 AD3d 578 1st Dept. 2015) (citing Matter of Daniel R., 70 AD3d 839 (2nd Dept. 2010); Matter of Keisha McL., 261 AD2d 341 (1st Dept. 1999)). C. Corroboration of a Child's Out of Court Statements

Here, the chief evidence at trial consisted of out-of-court statements made by the three year old child Kylie. FCA §1046(a)(vi) governs this type of evidence:

[P]revious statements made by the child relating to any allegation of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration. The testimony of the child shall not be necessary to make a fact-finding of abuse or neglect . . . .

FCA §1046(a)(vi). The leading case on corroboration of a child's out-of-court statements in Article 10 cases is Matter of Nicole V., 71 NY2d 112 (1987). In that case, the Court of Appeals provided an extensive analysis of §1046(a)(vi), including reviewing its statutory history when it was amended in 1985. Under the older version of the statute, they noted that there had been confusion about what quality of corroboration was needed in Family Court cases. However, the Court described that the new statute reflected the clear legislative intent that the more stringent "corroboration requirements of the criminal law are not applicable to article 10 civil proceedings . . . ." Id. at 118 (citations omitted). The Court went on to hold that §1046(a)(vi) now "states a broad flexible rule providing that out-of-court statements may be corroborated by any other evidence tending to support their reliability. . . . The types of evidence listed in [§1046] are only illustrative; additional kinds may also be deemed adequate on a case-by-case basis." Id. (internal quotations omitted). The Appellate Divisions have reinforced that the corroboration requirement is a "flexible" one, see Matter of Astrid C., 43 AD3d 819, 821 (2nd Dept. 2007) (quoting Matter of Christopher L., 19 AD3d 597 (2nd Dept. 2005), and the Third Department has ruled that "a relatively low degree of corroborative evidence is sufficient in abuse proceedings." Matter of Caitlyn U., 46 AD3d 1144, 1146 (3rd Dept. 2007) (quoting Matter of Joshua QQ., 290 AD2d 842, 843 (2nd Dept. 2002)).

Courts have considered many types of evidence to be corroborative of a child's out-of-court statements, including things that are not delineated in §1046. For example, among others: medical findings, see Matter of Laura W., 160 AD2d 585 (1st Dept. 1990); another witness' observation of injuries, Matter of Rico D., 19 AD3d 416 (2nd Dept. 2005); a respondent's admissions, Matter of X. MCC., 2016 NY App. Div. LEXIS 5069 (1st Dept. 2016); out-of-court statements made by other children alleging similar incidents, In re Joshua B., 28 AD3d 759 (2nd Dept. 2006) (citing Matter of Latisha W., 221 AD2d 645 (2nd Dept. 1995)); the testimony of an adult sibling that respondent had sexually abused her years earlier, Matter of Sha-Naya M. S. C., 130 AD3d 719 (2nd Dept. 2015) (collecting cases); Astrid C., 43 AD3d at 821 (report of similar allegations from the past made by another child of the respondents); evidence that "the victim was present at the home and in the company of respondent during the relevant time periods," Matter of Kole HH., 61 AD3d 1049, 1052 (3rd Dept. 2009); and observations of a child's behavioral changes, Matter of Selena R., 81 AD3d 449 (1st Dept. 2011); Matter of Dorlis B., 132 AD3d at 579 (corroboration by expert testimony about child suffering from depression, testimony about child's behavior in school, child's other consistent statements, and child's statements in medical records).

Another factor that courts have recognized as being supportive of a child's credibility and corroborative of out-of-court testimony is the consistency of a child's different out-of-court statements. See Matter of Kyle D., 138 AD3d 835 (2nd Dept. 2016) (consistency of out-of-court statements); Keisha McL., 261 AD2d at 342 (consistent repetitions to different people); Matter of Pearl M., 44 AD3d 348, 349 (1st Dept. 2007) (consistency of statements over time); Imani G., 130 AD3d (1st Dept. 2015) (medical records contained "the child's similar account of the sexual abuse"); Matter of J.S., 215 AD2d 213 (1st Dept. 1995) ("the consistent repetition of the facts . . . by children of such a tender age, over a period of time, to a number of different individuals").

In addition, a variety of types of expert testimony, opinion, and analysis have been found to be sufficient corroboration of a child's out-of-court statements. See Dorlis B., 132 AD3d at 579 (testimony that child suffered from depression "consistent with sexual abuse and not otherwise explained"); Nicole V., 71 NY2d at 119 (validation by an expert); J.S., 215 AD2d at 214 (validation by an expert); Laura W., 160 AD2d at 585 (validation that found evidence of post-traumatic stress syndrome as a result of sexual abuse). Indeed, family court cases have often gone even further, permitting experts to provide an explicit opinion as to the credibility of a victim, arguably usurping the role of the judge at fact-finding. See Pearl M., 44 AD2d at 349 (corroboration where expert "concluded that [the child] had been sexually abused"); Matter of Hadley C., 137 AD3d 1524, 1525 (3rd Dept. 2016) (expert found child's account "was consistent with the accounts of known sexual abuse victims").

And particularly relevant to the instant matter, the appellate divisions have found that expert testimony about a child's inappropriate knowledge of sexual matters and ability to describe specific sexual acts is a form of corroboration of out-of-court statements by that child. See Kyle D., 138 AD3d 835; Selena R., 81 AD3d 449; Matter of Addie F., 22 AD3d 986 (3rd Dept. 2005); Keisha McL., 261 AD2d 341; Laura W., 160 AD2d 585.

Finally, a family court can consider a respondent's failure to testify and offer an innocent explanation, as well as the negative inference drawn from this by the trial court, as factors to be considered with respect to corroboration of a child's out-of-court statements. See Dorlis B., 132 AD3d at 579; Matter of Ian H., 42 AD3d 701 (3rd Dept. 2007).

Reviewing all of the case law in this area, it is clear that no single type or quantum of corroboration is required, but rather that FCA §1046(a)(vi)'s requirement of "any other evidence tending to support the reliability" of the child's statements should be considered quite broadly. In the instant case, as described in the previous section, Kylie's out-of-court statements were corroborated by many forms of evidence: Mr. N.'s opportunity to abuse the child; Ms. R.'s observations of the child being in the same bed as Mr. N., which was not the norm; the promptness and unsolicited nature of Kylie's disclosure to her mother; ² the consistency of Kylie's descriptions of the events to her mother and in the medical records; and Dr. Meltzer's testimony about Kylie's use of language and descriptions that are not consistent with the knowledge normally possessed by a child of her age.

2 I find Kylie's disclosure to her mother, made approximately two days after the abuse, to be prompt. Kylie was only three years old at the time, and both Mr. N. and Ms. R.'s co-worker were present at different times over those two days, making it understandable that the child might not have felt comfortable reporting what happened. See People v. Sanders, 238 AD2d 215, 216 (1st Dept. 1997) (promptness evaluated in light of victim's age, ability to communicate, and fear of the defendant) People v. Vanterpool, 214 AD2d 429 (1st Dept. 1995) (delay of three weeks); cf. People v. Allen, 13 AD3d 892 (3rd Dept. 2004) (holding that outcry was not prompt but that a factor to be considered is whether victim was among strangers in whom the child could not confide). --------

In addition, Kylie's out-of-court statements are corroborated by Pet's Ex. 2, the medical records in evidence, and such statements are admissible under the medical records exception to the general bar against hearsay. See People v. Ortega, 15 NY3d 610 (2010); cf. Matter of Imani G., 130 AD3d 456 (1st Dept. 2015) (where child did testify in a sexual abuse case, corroboration found in medical records, which included child's similar account of the allegations). Under this exception, statements by a patient are admissible when they are made to treating professionals and are germane to treatment. In Ortega, the Court of Appeals confirmed a recent expansion of the exception to include even statements about the identity of the perpetrator, where such statements are germane to mental health treatment, safety planning, and other forms of medical and mental health services. Ortega, 15 NY3d at 618-19. Accordingly, I find that the medical records in Pet's Ex. 2, on their own, corroborate Kylie's out-of-court statements.

Of course, a court must be skeptical of basing a finding on the words of a child so young — here, only three years old. But other courts have made findings of sexual abuse based upon the out-of-court statements of three year olds, finding their statements to have been corroborated by other evidence in the case. See Matter of Ryan D., 125 AD2d 160 (4th Dept. 1987) (corroboration in the form of the child telling his mother he had a secret, exhibiting behavioral changes, resisting visiting with the respondent, having nightmares, drawing explicit pictures, displaying a "sense of fear and helplessness," expert testimony about how child abuse victims respond to abuse, and other factors); Matter of J.S., 215 AD2d 213 (1st Dept. 1995) (corroboration by having contracted a sexually transmitted disease, a validator, the children's inappropriate knowledge and acting out of sexual behaviors, and consistent repetition of the allegations). For the reasons described above, Kylie's statements are detailed, specific, and corroborated, and I find that ACS has proven by a preponderance of the evidence that Mr. N. sexually abused her, in violation of PL §130.65(3), Sexual Abuse in the First Degree. D. Derivative Abuse of Katelyn

Based upon the above findings, I also find that the child Katelyn was derivatively abused by Mr. N. The Family Court Act makes clear that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect or any other child of, or the legal responsibility of, the respondent." FCA §1046 (a)(i). The statute does not require proof of actual injury or direct harm with respect to siblings. See, e.g., In re Kylani R., 93 AD3d 556 (1st Dept. 2012). A derivative finding of abuse is "predicated upon the common understanding that a parent whose judgment and impulse control are so defective as to harm one child in his or her care is likely to harm others as well." Matter of Marino S., 100 NY2d 361 (2003); see also Kylani R., 93 AD3d at 557 (citing cases).

Here, it appears that Katelyn may have been in the same room at the time of the sexual abuse, see Matter of Dayannie I.M., 138 AD3d 747 (2nd Dept. 2016) (derivative abuse where other children present in the home), but in any event, Mr. N.'s sexual abuse of of Kylie demonstrates "a fundamental defect in parenting as to place the other children in substantial risk of harm." Matter of Dayanara, 101 AD3d 411, 412 (1st Dept. 2012) (citing Matter of Joshua R., 47 AD3d 465 (1st Dept. 2008)); see also Kylani R., 93 AD3d at 557 (citing cases). V. CONCLUSION

For all of the reasons described in this opinion, a preponderance of the evidence proved that Mr. N. (1) is the father of Katelyn and a person legally responsible for Kylie; (2) sexually abused the child Kylie; and (3) derivatively abused the child Kateyln. Dated:Bronx, NY July 19, 2016 ROBERT HETTLEMAN, J.F.C.