Opinion
2013-05-30
In re ASHLEY M.V., and Others, Children under the Age of Eighteen Years, etc., Victor V., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondent.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child Ashley M.V.
Karen Freedman, Lawyers for Children, Inc., New York (Brenda Soloff of counsel), attorney for the children Victor V., Jr. and Isaiah V.
SWEENY, J.P., SAXE, MOSKOWITZ, GISCHE, CLARK, JJ.
Order of fact-finding, Family Court, New York County (Douglas E. Hoffman, J.), entered on or about July 22, 2010, which, inter alia, after a hearing, found that respondent father had sexually abused his daughter Ashley V. and derivatively abused his sons Victor V. and Isaiah V., unanimously affirmed, without costs. Appeal from order of disposition, same court and Judge, entered on or about October 27, 2010, which placed Ashley V. in the custody of the Commissioner of Social Services until the completion of the next permanency hearing, unanimously dismissed, without costs, as moot.
The testimony of respondent's daughter at the fact-finding hearing was competent evidence that respondent sexually abused her and the absence of physical injury or other corroboration does not require a different result ( see Matter of Christina G. [Vladimir G.], 100 A.D.3d 454, 957 N.Y.S.2d 1 [1st Dept. 2012], lv. denied20 N.Y.3d 859, 2013 WL 537153 [2013];Matter of Jonathan F., 294 A.D.2d 121, 744 N.Y.S.2d 362 [1st Dept. 2002] ). The court properly credited the daughter's testimony and any inconsistencies in the testimony were peripheral ( see Matter of Kylani R. [Kyreem B.], 93 A.D.3d 556, 941 N.Y.S.2d 46 [1st Dept. 2012] ). Moreover, the caseworker testified that both of the child's brothers told her that during the relevant time period, respondent would send them to the park but would keep his daughter in the apartment. Such testimony supports the daughter's testimony that respondent would arrange to be alone with her before he would abuse her ( see Matter of Nicole V., 71 N.Y.2d 112, 124, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ).
Petitioner's establishment of its prima facie case resulted in the burden shifting to respondent to explain his conduct and rebut the evidence of his culpability. However, upon his failure to testify, the court properly drew a negative inference against him ( see Matter of Nicole H., 12 A.D.3d 182, 183, 783 N.Y.S.2d 575 [1st Dept. 2004] ).
The determination that respondent, by sexually abusing his daughter, derivatively abused his two sons was supported by a preponderance of the evidence. Respondent's actions showed a fundamental defect in understanding his parental obligations ( see Matter of Marino S., 100 N.Y.2d 361, 374–375, 763 N.Y.S.2d 796, 795 N.E.2d 21 [2003],cert. denied540 U.S. 1059, 124 S.Ct. 834, 157 L.Ed.2d 714 [2003] ).
Respondent advances no argument with respect to his daughter's placement on appeal and in any event, the dispositional order from which he appeals has expired ( see Matter of Kaila A. [Reginald A.–Lovely A.], 95 A.D.3d 421, 942 N.Y.S.2d 789 [1st Dept. 2012] ).