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In re Demetrius C.

Supreme Court of New York, First Department

December 14, 2017

In re Demetrius C., and Another, Dependent Children under the Age of Eighteen Years, etc., David C., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent, Epifania C., Nonparty-Intervenor-Respondent. In re Epifania C., Petitioner-Respondent, and David C., Respondent-Appellant.

          Anne Reiniger, New York, for appellant.

          Zachary W. Carter, Corporation Counsel, New York (Max O'McCann of counsel), for Administration for Children's Services, respondent.

          Larry S. Bachner, New York, for Epifania C., respondent.

          Tennille M. Tatum-Evans, New York, attorney for the child Demetrius C.

          Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child Deborah C.

          Gische, J.P., Webber, Oing, Singh, Moulton, JJ.

         Order, Family Court, New York County (Clark V. Richardson, J.), entered on or about May 19, 2015, which found that respondent father had abused his daughter and neglected his son, unanimously modified, on the law and the facts, to vacate the finding of derivative neglect of the son, and otherwise affirmed, without costs. Order, same court and Judge, entered on or about February 17, 2016, which, to the extent appealed from as limited by the briefs, granted petitioner mother's petition seeking to modify a prior custody order, only to the extent of setting a visitation schedule for the father and otherwise marking the matter "settled, " unanimously modified, on the law and the facts, to vacate the settled marking, remanded for a hearing on relocation, in accordance herewith, and otherwise affirmed as to the visitation schedule, without costs.

         Family Court's determination that the father sexually abused his daughter is supported by a preponderance of the evidence (see Family Ct Act § 1046[b][i]). The child's in-court testimony regarding the sexual abuse inflicted upon her was sufficient to support the abuse finding (Matter of Markeith G. [Deon W.], 152 A.D.3d 424, 424 [1st Dept 2017]). There is no basis for disturbing the court's credibility determinations, including its evaluation of the inconsistencies in the child's testimony, which were at any rate minor and peripheral (id.; Matter of Fendi B. [Jason B.], 142 A.D.3d 878, 878 [1st Dept 2016]). Nor was the child's inability to recall certain details of the abuse, which occurred six years prior, sufficient to render the whole of her testimony incredible (see Matter of Lauryn H. [William A.], 73 A.D.3d 1175, 1176-1777 [2d Dept 2010]). Family Court properly drew a negative inference from the father's failure to testify at the fact-finding hearing, notwithstanding the ongoing criminal investigation (see Markeith, 152 A.D.3d at 424-425).

         However, Family Court's determination that the father derivatively neglected his son was not supported by a preponderance of the evidence. The neglect finding was based entirely on the father's alleged sexual abuse of his daughter, which had occurred six years earlier. In addition, the children are differently situated such that the father's conduct toward his daughter is insufficient to demonstrate that the son is at risk of harm (see Matter of Cadejah AA., 33 A.D.3d 1155, 1158 [3d Dept 2006]). There is no evidence that the father's sexual abuse of his daughter was ever directed at his son, or that the son, who was much younger than the daughter, was aware of the abuse (Matter of Cindy JJ., 105 A.D.2d 189, 191 [3d Dept 1984]). Moreover, there was no evidence that the child was ever at risk of becoming impaired, although he had supervised and unsupervised visits with the father, during the six years following the abuse. We find no error in the court modifying visitation to reflect the current situation, that the son is not presently in New York, but Family Court should not have deemed the mother's relocation petition settled. The issue of whether the mother could relocate with the child was not settled, and therefore, a hearing was required (Matter of Lela G v Shoshanah B., 151 A.D.3d 593, 594 [1st Dept 2017]). The mother, unilaterally moved with the children to Florida, before there was a hearing on the petition, and without judicial or the child's father's approval. The relocation petition was not settled, ...


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