Opinion
16531 Dkt. Nos. NA-04377/20, NA-04378/20 Case No. 2022–00082
10-25-2022
In the MATTER OF E.H. and another, A Children Under Eighteen Years of Age, etc., M.H., Respondent–Appellant, v. Administration for Children's Services, Respondent–Respondent.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Jamison Davies of counsel), for respondent. Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for M. H., attorney for the child. Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), for E. H., attorney for the child.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Jamison Davies of counsel), for respondent.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for M. H., attorney for the child.
Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), for E. H., attorney for the child.
Manzanet–Daniels, J.P., Kennedy, Scarpulla, Mendez, Higgitt, JJ.
Order of fact-finding and disposition (one paper) of the Family Court, Bronx County (David J. Kaplan, J.), entered on or about December 21, 2021, insofar as it determined, after a hearing, that respondent sexually abused the subject eldest child and derivatively abused the subject younger child, unanimously affirmed, without costs.
Family Court's determination that respondent sexually abused the eldest child is supported by a preponderance of the evidence ( Family Ct Act § 1046[a][vi] ; [b][i]). The court properly determined that the child's statements to the hospital staff at Four Winds and Dr. Khan were independently admissible and did not require corroboration because they were relevant to her treatment, diagnosis and discharge (see People v. Parada, 67 A.D.3d 581, 582, 889 N.Y.S.2d 159 [1st Dept. 2009] [child's statements contained in medical records, were sufficiently related to diagnosis and treatment to be admissible]; see also People v. Ortega, 15 N.Y.3d 610, 619, 917 N.Y.S.2d 1, 942 N.E.2d 210 [2010] ). In any event, the child's out-of-court statements were properly corroborated by the testimony of the ACS caseworker, her treating therapist, her medical records, and by the expert testimony of a child psychologist that the child suffered from post-traumatic stress disorder culminating in a suicide attempt, consistent with sexual abuse and not otherwise explained (see Matter of Dorlis B. [Dorge B.], 132 A.D.3d 578, 18 N.Y.S.3d 327 [1st Dept. 2015] ; Matter of Estefania S. [Orlando S.], 114 A.D.3d 453, 979 N.Y.S.2d 582 [1st Dept. 2014] ).
Respondent's sexual abuse of the eldest child supports a finding of derivative abuse with respect to the younger child since it demonstrates that his understanding of his parental obligations is so defective as to place her at substantial risk, particularly since the younger child was present in the same room when the abuse occurred (see Matter of Maria S. [Angel A.], 185 A.D.3d 437, 124 N.Y.S.3d 792 [1st Dept. 2020] ; Matter of Krystal N. [Juan R.], 193 A.D.3d 602, 142 N.Y.S.3d 808 [1st Dept. 2021] ; Matter of Brandon M. [Luis M.], 94 A.D.3d 520, 942 N.Y.S.2d 79 [1st Dept. 2012] ).