Opinion
15736-15737 Dkt. No. NA-21474/17 Case Nos. 2020–01882, 2020–01885
04-19-2022
In the MATTER OF MARIDAS A., A Child Under Eighteen Years of Age, etc., Paula A., et al., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Leslie S. Lowenstein, Woodmere, for Paula A., appellant. Daniel R. Katz, New York, for Charlton J., appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Kate Fletcher of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child.
Leslie S. Lowenstein, Woodmere, for Paula A., appellant.
Daniel R. Katz, New York, for Charlton J., appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Kate Fletcher of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child.
Gische, J.P., Webber, Scarpulla, Rodriguez, Higgitt, JJ.
Order of fact-finding and disposition (one paper), Family Court, New York County (Patria Frias–Colon, J.), entered on or about February 10, 2020, which, to the extent appealed from as limited by the briefs, after a hearing, determined that respondents Charlton J. and Paula A., abused and neglected the subject child, unanimously affirmed, without costs.
The evidence supports the finding that respondent Charlton J., the adult brother of the subject child, who was adopted by respondent mother, was a person legally responsible for the child within the meaning of the Family Court Act § 1012(g) (see Matter of Ja'Dore G., [Canilly G.], 169 A.D.3d 544, 545, 95 N.Y.S.3d 79 [1st Dept. 2019] ). The record shows that Charlton lived in the same household as the child from the time the child was placed in the home when the child was young through the time the allegations of abuse came to light when the child was about 15 years old. The mother routinely left the child in Charlton's care when she left the house for work or to go to a casino. Charlton acted as the functional equivalent of a parent by feeding the child, allowing the child to watch television, and disciplining the child (see id. ). Further, the court properly drew a negative inference from Charlton's failure to testify (see Matter of Dayquon G., 22 A.D.3d 431, 803 N.Y.S.2d 510 [1st Dept. 2005] ).
A preponderance of the evidence also supports the abuse finding against the mother based on her failure to protect the subject child from sexual abuse by Charlton (see Family Court Act §§ 1012[e][iii] ; 1046[b][i]). The evidence supports the finding that the mother became aware of the allegations that Charlton had been sexually abusing the subject child for years, asked him if they were true, and accepted his denials without taking any steps to protect the child. Where a parent knows about the ongoing abuse and fails to take steps to protect the child from further harm, the finding of abuse against that parent is appropriate (see Matter of Sania S., 143 A.D.3d 545, 545, 39 N.Y.S.3d 148 [1st Dept. 2016] ; Matter of Michael B. (Samantha B.), 130 A.D.3d 619, 13 N.Y.S.3d 196 [2d Dept. 2015] ; Matter of Jaquay O., 223 A.D.2d 422, 422–423, 636 N.Y.S.2d 757 [1st Dept. 1996] ). Although the mother claimed that she did not know of the abuse before the child disclosed it to a school paraprofessional, the court found her testimony was not credible and we find no basis to depart from the credibility determinations, which are supported by the record and entitled to deference ( Matter of Irene O. , 38 N.Y.2d 776, 778, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ; Matter of Michael B. [Samantha B.], 130 A.D.3d at 621, 13 N.Y.S.3d 196 ).