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In re Nyrie W.

Supreme Court of New York, First Department

November 7, 2013

In re Nyrie W., and Others, Dependent Children Under the Age of Eighteen Years, etc., and Paul M., Respondent-Appellant, Commissioner of Social Services of the City of New York, Petitioner-Respondent.

Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the children.

Mazzarelli, J.P., Andrias, Freedman, Gische, JJ.

Order of fact-finding and disposition, Family Court, Bronx County (Jane Pearl, J.), entered on or about March 29, 2011, which, to the extent appealed from as limited by the briefs, after a fact-finding hearing, found that respondent father had sexually abused his daughter Nyrie W., derivatively abused his daughter Porscha M., and derivatively neglected his sons Damar M., Dmitri M. and Donovan M., unanimously affirmed, without costs.

The Family Court's finding that the father had sexually abused his daughter Nyrie was supported by a preponderance of the evidence (Family Ct Act §§ 1012[e][iii], 1046[b][i]). Nyrie's out-of-court statements to caseworkers that her father had raped her on five occasions were corroborated by North Central Bronx Hospital's records (see § 1046[a][vi]). Those records were properly certified and contained the requisite delegation of authority (see § 1046[a][iv]). Nyrie also made statements to caseworkers that her father would enter the bathroom while she was showering and tell her she had to wash her private parts only. Her statements were adequately corroborated by the statements her siblings made to the caseworkers (see Matter of Tiara G. [ Cheryl R.], 102 A.D.3d 611, 612 [1st Dept 2013], lv denied 21 N.Y.3d 855 [2013]).

The derivative findings of abuse of Porscha and neglect of Damar, Dmitri and Donovan were also supported by a preponderance of the evidence (see Family Ct Act § 1046[a][i]). The evidence of the father's multiple rapes of Nyrie "demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [his] care" (Matter of Vincent M., 193 A.D.2d 398, 404 [1st Dept 1993]). The derivative findings of abuse and neglect were further supported by evidence that some of the children were in the father's apartment while he raped Nyrie (see Matter of Brandon M. [Luis M.], 94 A.D.3d 520, 520-521 [1st Dept 2012].

We reject the father's claim that he was denied effective assistance of counsel. His counsel's failure to object to the admissibility of medical records from Jacobi Medical Center did not prejudice him, as those records were not necessary to find, by a preponderance of the evidence, that he had abused Nyrie (cf. Matter of Cassandra Tammy S. [Babbah S.], 89 A.D.3d 540, 541 [1st Dept 2011]; Matter of Chaquill R., 55 A.D.3d 975, 977 [3d Dept 2008], lv denied 11 N.Y.3d 715 [2009]).

We have considered the father's remaining arguments and find them unavailing.


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