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In re D. S. (Anonymous)

Supreme Court of New York, Second Department

February 8, 2017

In the Matter of D. S. (Anonymous). Administration for Children's Services, appellant; Shaqueina W. (Anonymous), et al., respondents. (Proceeding No. 1) In the Matter of R. M. (Anonymous), Jr. Administration for Children's Services, appellant; Shaqueina W. (Anonymous), et al., respondents. (Proceeding No. 2) Docket Nos. N-20712-13, N-20713-13

          Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Diana Lawless of counsel), for appellant.

          Brooklyn Defender Services, Family Defense Practice, Brooklyn, NY (Belle Lindner of counsel), and Davis Polk & Wardwell LLP, New York, NY (Stefani Johnson Myrick and R. Brendan Mooney of counsel), for respondent R. M.

          Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Raymond Rogers of counsel), attorney for the child D. S.

          Elaine McKnight, Brooklyn, NY, attorney for the child R. M., Jr.

          JOHN M. LEVENTHAL, J.P. SHERI S. ROMAN SANDRA L. SGROI FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         Appeal by the petitioner from an order of fact-finding of the Family Court, Kings County (Elizabeth Barnett, J.), dated November 18, 2015. The order of fact-finding, after a fact-finding hearing, in effect, dismissed so much of the petitions as alleged that the respondent R. M. abused and neglected the subject children.

         ORDERED that the order of fact-finding is modified, on the law, by deleting the provision thereof, in effect, dismissing so much of the petition in Proceeding No. 1 as alleged that the respondent R. M. abused and neglected the child D. S., and substituting therefor a provision finding that the respondent R. M. abused and neglected the child D. S.; as so modified, the order of fact-finding is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing and an order of disposition thereafter on the petition in Proceeding No. 1 insofar as asserted against the respondent R. M.

         The petitioner commenced these proceedings pursuant to Family Court Act article 10 alleging, inter alia, that the respondent R. M. (hereinafter the respondent) is the father of R. M., Jr., and a person legally responsible for D. S., that he abused and neglected D. S., and that he derivatively abused and neglected R. M., Jr. After a fact-finding hearing, the Family Court found that the petitioner failed to establish by a preponderance of the evidence that the respondent abused or neglected the subject children, and in effect, dismissed the petitions insofar as asserted against him.

         At a fact-finding hearing, any determination that a child is an abused or neglected child must be based on a preponderance of the evidence (see Family Ct Act § 1046[b][i]). Moreover, a court "may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding" (Matter of Nassau County Dept. of Social Servs. v Denise J., 87 N.Y.2d 73, 79; see Matter of Jackson F. [Gabriel F.], 121 A.D.3d 1114, 1115; Matter of Dean J.K. [Joseph D.K.], 121 A.D.3d 896, 897; Matter of Mylasia P. [Brenda P.], 104 A.D.3d 856).

         "While the credibility findings of a hearing court are accorded deference, this Court is free to make its own credibility assessments and, where proper, make a finding of abuse or neglect based upon the record" (Matter of Nah-Ki B. [Nakia B.], 143 A.D.3d 703, 706 [citations omitted]; see Matter of Nyasia C. [Christine J.-L.], 137 A.D.3d 781, 782; Matter of Chanyae S. [Rena W.], 82 A.D.3d 1247).

         Here, contrary to the Family Court's determination, the petitioner met its burden of establishing, by a preponderance of the evidence, that the respondent abused D. S. (see Family Ct Act §§ 1012[e][iii]; 1046[b][i]; Penal Law § 130.52[1]). D. S. testified that the respondent, on three occasions, grabbed her buttocks, and, when she looked at him, the respondent said "what, " and smiled. Further, D. S. testified that each incident made her feel "uncomfortable." This evidence, together with a negative inference drawn from the respondent's failure to testify, was sufficient to support a finding of abuse.

         Any inconsistencies in D. S.'s accounts of the incidents did not render her testimony unworthy of belief (see Matter of Andrea V. [James A.], 128 A.D.3d 1077; Matter of Joshua J.P. [Alquiber R.], 127 A.D.3d 1200; Matter of Jasmine A., 18 A.D.3d 546). Moreover, the respondent's intent to gain sexual gratification could be inferred from the nature of the conduct about which D. S. testified (see Matter of Lesli R. [Luis R.], 138 A.D.3d 488; Matter of Amparo B.T. [Carlos B.E.], 118 A.D.3d 809; Matter of Daniel R. [Lucille R.], 70 A.D.3d 839; see also Matter of Keisha McL., 261 A.D.2d 341).

         In addition, the petitioner met its burden of establishing, by a preponderance of the evidence, that the respondent neglected D. S. (see Family Ct Act § 1012[f][i][B]; Matter of Charlie S. [Rung S.], 82 A.D.3d 1248).

         However, the Family Court properly dismissed the petition related to R. M., Jr., the respondent's biological son who was born shortly after the incident at issue, insofar as it alleged that the respondent derivatively abused and/or neglected R. M., Jr. While evidence of the abuse or neglect of one child may evince a flawed understanding of parental duties and impaired parental judgment sufficient to support a finding of derivative abuse or neglect as to another child in the respondent's care (see Matter of Joshua P. [David J.],111 A.D.3d 836), a finding of abuse or neglect of one child does not, by itself, establish that other children in the care of the respondent have been derivatively abused or neglected (see Matter of Kyanna T. [Winston R.],99 A.D.3d 1011, 1013; Matter of Elijah O. [Marilyn O.],83 A.D.3d 1076, 1077; Matter of Lauryn H. [William A.],73 A.D.3d 1175, 1177). Here, under the circumstances ...


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