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In re Isaiah F.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 22, 2009

IN RE ISAIAH F., AND ANOTHER, DEPENDENT CHILDREN UNDER THE AGE OF EIGHTEEN YEARS, ETC., AND ALEXANDER W., ET AL., RESPONDENTS-APPELLANTS, ALEXANDER F., ET AL., RESPONDENTS, ADMINISTRATION FOR CHILDREN'S SERVICES, PETITIONER-RESPONDENT.

Order of fact-finding, Family Court, Bronx County (Monica Drinane, J.), entered on or about September 9, 2008, which found that the subject child, Isis, was neglected and that the subject child, Isaiah, was derivatively neglected, unanimously affirmed, 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.

Sweeny, J.P., Catterson, Renwick, Freedman, Abdus-Salaam, JJ.

The court correctly found appellant Anita T. to be a person legally responsible for the subject children (see Matter of Yolanda D., 88 NY2d 790, 796 [1996]).

The findings of neglect are supported by a preponderance of the evidence that sexual abuse occurred, including testimony by a mental health expert based on independent observations of the children, Isis's demonstration to the expert using anatomically correct dolls corroborating her prior, consistent, independently recalled out-of-court statements regarding the abuse, and Isaiah's out-of-court statements corroborating Isis's account of the abuse (see Matter of Nicole V., 71 NY2d 112, 124 [1987]; Matter of Pearl M., 44 AD3d 348, 349 [2007]; Matter of Najam M., 232 AD2d 281, 282 [1996]).

Expert testimony concerning respondent Alexander F.'s Abel test results did not pertain to appellant Alexander W., who did not urge admission of the expert's finding that Alexander F. is not sexually aroused by children, or appeal the court's Frye decision to exclude the test results and the expert's testimony. In any event, the court properly found, based on the expert's testimony, that the Abel test, while designed to diagnose and treat pedophilia, does not apply to intrafamilial sexual abuse, which occurs as a result of family dynamics rather than a general sexual interest in children, and thus was not relevant to whether the acts of intrafamilial sexual abuse alleged herein occurred.

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

20091222

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