Opinion
14175-14176 Dkt. No. 2020–01019, 2020-03982 Case No. NA-10204/17, NA-10206/17
07-08-2021
In the MATTER OF J. D., and Others, Children Under Eighteen Years of Age, etc., S. A., Respondent–Appellant, v. M. A., and Another, Children–Appellants, Administration for Children's Services, Petitioner–Respondent.
Andrew J. Bear, New York, for S. A., appellant. Larry S. Bachner, New York, for M.A. and E. A., children-appellant. James E. Johnson, Corporation Counsel, New York (Rebecca L. Visgaitis of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), attorney for the child J. D.
Andrew J. Bear, New York, for S. A., appellant.
Larry S. Bachner, New York, for M.A. and E. A., children-appellant.
James E. Johnson, Corporation Counsel, New York (Rebecca L. Visgaitis of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), attorney for the child J. D.
Manzanet–Daniels, J.P., Webber, Singh, Kennedy, JJ.
Orders of disposition, Family Court, Bronx County (Fiordaliza A. Rodriguez, J.), entered on or about January 8, 2020, to the extent they bring up for review a fact-finding order, same court and Judge, entered on or about January 7, 2020, which found that respondent neglected and abused J.D. (the child) and derivatively neglected and abused the adoptive children M.A. and E.A., and order, same court and Judge, entered on or about May 26, 2019, which granted the child's motion to quash a subpoena compelling his testimony, unanimously affirmed, without costs. The determination that respondent abused the child is supported by a preponderance of the evidence (see Family Court Act §§ 1012[f][i][B] ; 1046[b][i]). Two caseworkers testified about detailed out-of-court statements made by the child, who described respondent's sexual abuse to them and in forensic interviews. The child's out-of-court statements were further corroborated by the testimony of the child's older sibling, who disclosed that when the sibling was the child's age, the respondent sexually abused the sibling in nearly an identical manner as the child described (see Matter of A.P. [M.P.], 183 A.D.3d 535, 536, 124 N.Y.S.3d 32 [1st Dept. 2020] ), and by two explicit photographs of the child with respondent's hand on the child's buttocks. We also take judicial notice of respondent's subsequent conviction, upon his plea, to a criminal offense arising from the abuse alleged in the petition (see Matter of Diana N. [Kim N.], 139 A.D.3d 573, 574, 33 N.Y.S.3d 179 [1st Dept. 2016], lv denied 28 N.Y.3d 902, 2016 WL 4742545 [2016] ; see also generally Leary v. Bendow, 161 A.D.3d 420, 421, 76 N.Y.S.3d 519 [1st Dept. 2018] ).
Family Court providently exercised its discretion in granting the child's motion to quash respondent's subpoena compelling the child to testify at the fact-finding hearing, taking into consideration the child's social worker's opinion that testifying would be highly stressful and psychologically harmful to the child, who had been diagnosed with PTSD (see Matter of Lesli R. [Luis R.] , 138 A.D.3d 488, 489, 29 N.Y.S.3d 317 [1st Dept. 2016] ).
The determination that respondent derivatively neglected and abused his adoptive children is supported by a preponderance of the evidence. Respondent's long-term sexual abuse of the child, his godchild, while his children were in the home demonstrates "such an impaired level of parental judgment as to create a substantial risk of harm" to his children ( Matter of Vincent M., 193 A.D.2d 398, 404, 597 N.Y.S.2d 309 [1st Dept. 1993] ; see also Matter of Kylani R. [Kyreem B.], 93 A.D.3d 556, 557, 941 N.Y.S.2d 46 [1st Dept. 2012] ).