Opinion
221A-222B 222 221.
02-16-2016
In re SKYLEAN A.P., and Another, Children Under the Age of Eighteen Years, etc., Jeremiah S., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent, Theresa Q., Respondent.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for respondent. Larry S. Bachner, Jamaica, attorney for the children.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for respondent.
Larry S. Bachner, Jamaica, attorney for the children.
Opinion
Order of disposition, Family Court, Bronx County (Linda Tally, J.), entered on or about August 6, 2014, to the extent it brings up for review a fact-finding order, same court (Jane Pearl, J.), entered on or about October 22, 2013, which found that respondent father sexually abused the older child, and order of disposition, same court (Linda Tally, J.), entered on or about August 12, 2014, to the extent it brings up for review an order, same court and Judge, entered on or about August 6, 2014, which granted petitioner agency's motion for summary judgment against respondent on the issue of derivative neglect of the younger child, unanimously affirmed, without costs. Appeals from the fact-finding order and the order granting summary judgment unanimously dismissed, without costs, as subsumed in the appeals from the orders of disposition.
A preponderance of the evidence in the record supports the finding that respondent abused the older child, for whom he was responsible (Family Court Act § 1046[b] ). The child's unsworn out-of-court statements were sufficiently corroborated by the expert testimony of a psychotherapist specializing in child sexual abuse (see Matter of Nicole V., 71 N.Y.2d 112, 120–121, 524 N.Y.S.2d 19, 518 N.E.2d 914 1987; Matter of Dorlis B. [Dorge B.], 132 A.D.3d 578, 18 N.Y.S.3d 327 1st Dept.2015; Family Court Act § 1046[a][vi] ). Respondent's expert's testimony was insufficient to rebut the psychotherapist's opinion. The inconsistencies among the child's statements were minor and peripheral (see Matter of Ashley M.V. [Victor V.], 106 A.D.3d 659, 966 N.Y.S.2d 406 1st Dept.2013 ). The absence of physical injury to the child is not fatal to a finding of sexual abuse (id.). Family Court was entitled to draw a negative inference against respondent from the fact that he did not testify (see Dorlis B., 132 A.D.3d at 579, 18 N.Y.S.3d 327; Matter of Estefania S. [Orlando S.], 114 A.D.3d 453, 453–454, 979 N.Y.S.2d 582 1st Dept.2014 ).
Family Court correctly found that no issue of fact existed as to whether respondent derivatively neglected the younger child, who was born during the abuse and neglect proceedings concerning the older child, since the abuse of the older child was proximate in time to the derivative proceeding, and respondent acknowledged that he had not remedied the condition underlying the abuse finding since he refused to complete a sex offender program, as ordered (see Matter of Keith H. [Logann M.K.], 113 A.D.3d 555, 555–556, 980 N.Y.S.2d 14 1st Dept.2014, lv. denied 23 N.Y.3d 902, 2014 WL 1775882 2014; Matter of Kimberly H., 242 A.D.2d 35, 38, 673 N.Y.S.2d 96 1st Dept.1998 ). Respondent's abuse of the older child evinced so fundamental a defect in parenting as to place the younger child at substantial risk of harm (see Matter of Dayanara V. [Carlos V.], 101 A.D.3d 411, 955 N.Y.S.2d 566 1st Dept.2012 ).