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.
Reiniger, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Max
O'McCann of counsel), for Administration for
Children's Services, respondent.
S. Bachner, New York, for Epifania C., respondent.
Tennille M. Tatum-Evans, New York, attorney for the child
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.
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.
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).
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