Opinion
06-30-2016
In re X. McC., and Others, Children Under Eighteen Years of Age, etc., R.O., Respondent–Appellant, The Administration for Children's Services, Petitioner–Respondent, D. McC., Respondent. In re A.O., and Another, Children Under Eighteen Years of Age, etc., R.O., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent, D. McC., Respondent.
Bruce A. Young, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children X. McC., X. McC., L. McC., P.P. and J.P. Robert F. Himmelman, New York, attorney for the children A.O. and A.O.
Bruce A. Young, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children X. McC., X. McC., L. McC., P.P. and J.P.
Robert F. Himmelman, New York, attorney for the children A.O. and A.O.
Orders, Family Court, Bronx County (Joan L. Piccirillo, J.), entered on or about September 19, 2014, which after fact-finding determinations that respondent had sexually abused and neglected one of the subject children and had derivatively abused and neglected the other subject children, released the children to the mother, and directed respondent to, among other things, enroll and successfully complete sex offender and batterer's accountability programs, unanimously affirmed, without costs.
A preponderance of the evidence supports Family Court's determination that respondent, the biological father of two of the subject children and a person legally responsible for the other subject children, sexually abused the oldest subject child, then 12 years old, in violation of Penal Law §§ 130.52(1), 130.55, and 130.60(2) (see Family Ct. Act §§ 1012[e][iii], 1046[b] [i] ). The child's out-of-court statements were corroborated by respondent's admissions at a child safety conference (see Matter of Christina F., 74 N.Y.2d 532, 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294 [1989] ). Moreover, Family Court properly drew a negative inference against him based on his failure to testify at the fact-finding hearing (Matter of Jazmyn R. [Luceita F.], 67 A.D.3d 495, 889 N.Y.S.2d 30 [1st Dept.2009] ).
Respondent failed to preserve for appellate review his argument that his constitutional rights were violated because petitioner agency prohibited counsel from attending the child safety conference. In any event, the argument is unavailing, since, among other things, the right to counsel under Family Court Act § 262(a) does not attach in Family Court proceedings until the first court appearance by respondent, which occurred after the child safety conference. A preponderance of the evidence supports Family Court's determination that respondent neglected the oldest subject child by inflicting excessive corporal punishment through the use of a belt that left bruises and marks on her body (see Family Ct. Act § 1012[f][i][B] ; see also Matter of Aniya C. [Michelle C.], 99 A.D.3d 478, 479, 952 N.Y.S.2d 127 [1st Dept.2012] ).
The derivative abuse and neglect findings as to the other subject children, including respondent's biological children, were also supported by a preponderance of the evidence (see Matter of Nhyashanti A. [Evelyn B.], 102 A.D.3d 470, 956 N.Y.S.2d 887 [1st Dept.2013] ).
Family Court properly ordered respondent to attend a batterer's and sex offender program, given the evidence of domestic violence and his sexual abuse of the oldest child.
We have considered respondent's remaining arguments and find them unavailing.
MAZZARELLI, J.P., RENWICK, MOSKOWITZ, GISCHE, GESMER, JJ., concur.