Opinion
16233 16232A 16232
11-24-2015
In re ALIJAH S., and Others, Children Under the Age of Eighteen Years, etc., Daniel S., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Kathy Chang Park of counsel), for respondent. George E. Reed, Jr., White Plains, attorney for the children Alijah S. and Juan T. Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child Alexander T.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Kathy Chang Park of counsel), for respondent.
George E. Reed, Jr., White Plains, attorney for the children Alijah S. and Juan T.
Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child Alexander T.
Opinion
Orders of disposition, Family Court, Bronx County (Karen I. Lupuloff, J.), entered on or about May 6, 2014, to the extent they bring up for review an order of fact-finding, same court and Judge, entered on or about May 2, 2014, which, after a hearing, found that respondent-appellant had sexually abused the oldest subject child, his adoptive brother, and derivatively abused the two other subject children, unanimously affirmed, without costs. Appeal from fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the orders of disposition.
Respondent failed to preserve his argument that he was not a person legally responsible for two of the subject children, and we decline to consider it (see Matter of Keydra R. [Robert R.], 105 A.D.3d 588, 589, 964 N.Y.S.2d 417 1st Dept.2013 ). As an alternate holding, we reject it on the merits (see Family Ct. Act § 1012[g]; Matter of Keoni Daquan A. [Brandon W.-April A.], 91 A.D.3d 414, 415, 937 N.Y.S.2d 160 1st Dept.2012 ).
The findings of sexual abuse and derivative abuse were supported by a preponderance of the evidence (see Family Ct. Act § 1046[b][i]; Matter of Dayanara V. [Carlos V.], 101 A.D.3d 411, 412, 955 N.Y.S.2d 566 1st Dept.2012 ). There is no basis to disturb Family Court's credibility determinations crediting the testimony given by the oldest child and discrediting the testimony given by respondent (Dayanara, 101 A.D.3d at 412, 955 N.Y.S.2d 566). The child's testimony was competent evidence that respondent sexually abused him on about 20 occasions, “and the fact that [he] did not have a physical injury or that there was no corroboration of [his] testimony does not require a different result” (Matter of Jani Faith B. [Craig S.], 104 A.D.3d 508, 509, 961 N.Y.S.2d 135 1st Dept.2013 ). Family Court providently exercised its discretion in limiting the scope of cross-examination on collateral matters related to the child's credibility (People v. Antonetty, 268 A.D.2d 254, 254, 701 N.Y.S.2d 362 1st Dept.2000, lv. denied 94 N.Y.2d 945, 710 N.Y.S.2d 1, 731 N.E.2d 618 2000 ).
Given the nature and severity of the abuse inflicted by respondent upon the oldest child, Family Court properly found derivative abuse as to the other children (Matter of Kaiyeem C. [Ndaka C.], 126 A.D.3d 528, 529, 4 N.Y.S.3d 39 1st Dept.2015 ).