Opinion
2012-11-13
In re CHRISTINA G., and Others, Dependent Children Under Eighteen Years of Age, etc., Vladimir G., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Dora M. Lassinger, East Rockaway, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), for respondent.
Dora M. Lassinger, East Rockaway, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Judith Waksberg of counsel), attorney for the children.
GONZALEZ, P.J., SAXE, CATTERSON, ACOSTA, GISCHE, JJ.
Order, Family Court, Bronx County (Carol R. Sherman, J.), entered on or about July 25, 2011, which, after a hearing, found that respondent-appellant had sexually abused his oldest daughter, derivatively abused the other three subject children, and neglected all four subject children, unanimously affirmed, without costs.
A preponderance of the evidence supports the court's determination that respondent had sexually abused his oldest daughter ( seeFamily Ct. Act §§ 1012[e][iii]; 1046[b][I] ). The daughter's sworn testimony at the fact-finding hearing is competent evidence of abuse ( Matter of Danielle M., 151 A.D.2d 240, 243, 542 N.Y.S.2d 525 [1st Dept.1989] ), and the absence of physical injury or other corroboration does not require a different result ( see Matter of Jonathan F., 294 A.D.2d 121, 744 N.Y.S.2d 362 [1st Dept.2002];Danielle M., 151 A.D.2d at 243, 542 N.Y.S.2d 525). There is no basis to disturb Family Court's credibility determinations ( Matter of Shirley C.–M., 59 A.D.3d 360, 361, 873 N.Y.S.2d 616 [1st Dept.2009] ). Once petitioner established its prima facie case, the burden shifted to respondent to explain his conduct and rebut the evidence of his culpability, which he failed to do ( see Matter of Elizabeth S. [Dona M.], 70 A.D.3d 453, 453–454, 894 N.Y.S.2d 51 [1st Dept.2010] ). Although the court did not state that it was drawing a negative inference from respondent's failure to testify, it was entitled to do so ( see Matter of Nicole H., 12 A.D.3d 182, 183, 783 N.Y.S.2d 575 [1st Dept.2004] ).
Family Court's determination that respondent had derivatively abused the other children is also supported by a preponderance of the evidence ( seeFamily Ct. Act § 1046[a][i] ). Indeed, respondent's daughter testified that one of her brothers had witnessed the sexual abuse and that the other children were present in the apartment when the abuse took place ( see Matter of Marino S., 100 N.Y.2d 361, 374, 763 N.Y.S.2d 796, 795 N.E.2d 21 [2003];Matter of Brandon M. [Luis M.], 94 A.D.3d 520, 520–521, 942 N.Y.S.2d 79 [1st Dept.2012] ).
A preponderance of the evidence also supports Family Court's finding that respondent had neglected the children by abusing cocaine ( seeFamily Ct. Act § 1012[f][I][B] ). An agency caseworker testified that respondent admitted that he had last used cocaine a month before the hearing and was “high” when he returned home, and that he was not in a treatment program. In addition, respondent's daughter testified that on one occasion, respondent had used cocaine while she was in the car. This proof was sufficient to trigger the application of the presumption of neglect under Family Court Act § 1046(a)(iii), which obviates the need to establish the children's impairment or risk of impairment ( see Matter of Keoni Daquan A. [Brandon W.-April A.], 91 A.D.3d 414, 415, 937 N.Y.S.2d 160 [1st Dept. 2012];Matter of Nasiim W. [Keala M.], 88 A.D.3d 452, 453, 931 N.Y.S.2d 4 [1st Dept.2011] ). Respondent failed to rebut this prima facie evidence of neglect ( id.).