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.
McKnight, Brooklyn, NY, attorney for the child R. M., Jr.
M. LEVENTHAL, J.P. SHERI S. ROMAN SANDRA L. SGROI FRANCESCA
E. CONNOLLY, JJ.
DECISION & ORDER
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
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.
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
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).
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
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). 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.
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
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).
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