Opinion
July 15, 1991
Appeal from the Family Court, Kings County (Palmer, J.).
Ordered that the appeal from the fact-finding order dated September 12, 1990, is dismissed, without costs or disbursements, as that order was superseded by the order of disposition dated March 6, 1991 (see, Matter of Linda K., 132 A.D.2d 149); and it is further,
Ordered that the order of disposition is modified by deleting therefrom the provision permitting Kempleton N., Sr., to return to the family home, and adding thereto a provision excluding Kempleton N., Sr., from the family home for a period of one year; as so modified, the order of disposition is affirmed, without costs or disbursements.
We find that the Family Court's finding that Kempleton N., Sr., had sexually abused the child Nichole B. is supported by a preponderance of the evidence adduced at the fact-finding hearing (see, Matter of Nicole V., 71 N.Y.2d 112, 117; Matter of Tammie Z., 66 N.Y.2d 1, 3).
The Family Court's determination to allow Kempleton N., Sr., to return to the family home did not sufficiently account for the best interests of the abused child (see, Matter of Star Leslie W., 63 N.Y.2d 136, 147; Matter of Valerie Leonice T., 107 A.D.2d 327). The testimony adduced at the dispositional hearing revealed that the child's mother did not believe that Kempleton N., Sr., abused her daughter, despite the daughter's earlier testimony at the fact-finding hearing detailing repeated occasions of sexual abuse by him, and the opinion of a child abuse expert that the child's reports of the abuse had not been fabricated. A social worker also testified that she did not know whether the child's mother would protect her from further abuse.
In such circumstances, where there has been a finding of sexual abuse, the "safer course" is not to return the child to the abusive parent (Matter of Zariyasta S., 158 A.D.2d 45, 47, quoting Matter of Ruth McI., 140 A.D.2d 255). Since we find that it would not be in the child's best interests to live with Kempleton N., Sr., prior to his engaging in therapy, we modify the dispositional order to exclude Kempleton N., Sr., from the home for a one-year period, during which time he must undergo a course of therapy in accordance with the remainder of the dispositional order. Thompson, J.P., Lawrence, Balletta and O'Brien, JJ., concur.