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In re Anahys V.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 8, 2009

IN RE ANAHYS V., AND ANOTHER, CHILDREN UNDER THE AGE OF EIGHTEEN YEARS, ETC.,
AND JOHN ., RESPONDENT-APPELLANT, KATHERINE O., RESPONDENT,
NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, PETITIONER-RESPONDENT.

Order of disposition, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about December 12, 2008, which, upon a fact-finding determination that respondent father sexually abused the subject children, placed the children in the custody of the Commissioner of Social Services until the completion of the permanency hearing scheduled for January 29, 2009, unanimously affirmed insofar as it brings up for review the fact-finding determination, and the appeal otherwise dismissed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Saxe, Sweeny, Moskowitz, Abdus-Salaam, JJ.

The children's out-of-court statements were corroborated by hospital records noting the older child's noticeable change in demeanor when talking about respondent; the testimony of the expert in child psychology who found that the child's disclosures were consistent with prior disclosures to others and that her narrative was spontaneous and lacked the "robotic" quality of coached children; and therapy records revealing the child's repeated declarations that respondent had abused her and her sister, and her continued anger at respondent, fear of him, and nightmares and other symptoms (see e.g. Matter of Jaclyn P., 86 NY2d 875 [1995], cert denied sub nom. Papa v Nassau County Dept. of Social Servs., 516 US 1093 [1996]; Matter of Shirley C.-M., 59 AD3d 360 [2009]; Matter of Keisha McL., 261 AD2d 341 [1999]). Although the younger child's verbal limitations and lack of detail render her statement insufficient alone to support a finding of sexual abuse, the statements of the children were cross-corroborative, given the similarity of their accounts of respondent's conduct and the older child's repeated statements that respondent had touched her sister in the same way as he had touched her (see e.g. Matter of Nicole V., 71 NY2d 112, 124 [1987]).

The court properly admitted the expert's report into evidence without redacting the statements of the children's foster mother, since these statements were admitted not for their truth but to show the information on which the expert relied in forming his opinion (see Rivera v City of New York, 200 AD2d 379 [1994]).

Respondent's challenge to the court's denial of his request for an adjournment of the dispositional hearing is academic, as the order of disposition has expired by its own terms (see Matter of Vincent L., 46 AD3d 395, 396 [2007]). In any event, respondent admittedly was not in a position to take custody of the children, and the court properly determined that he could contest the issue of visitation at the permanency hearing.

We have reviewed respondent's remaining contention and find it unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091208

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