IN RE: A.M. (2024)

Order of fact-finding and disposition (one paper), Family Court, Bronx County (Gigi N. Parris, J.), entered on or about November 16, 2023, which, to the extent appealed from as limited by the briefs, determined, after a hearing, that respondent-appellant, a person legally responsible for the subject children, sexually abused the subject child A.M. and derivatively abused the other two subject children, unanimously affirmed, without costs.

A preponderance of the evidence supported the finding that appellant sexually abused A.M. (Family Ct Act § 1046[a][vi];  Matter of Nicole V., 71 N.Y.2d 112, 118, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987]).  A.M.'s statements to medical personnel at St. Barnabas Hospital and Metropolitan Hospital were independently admissible and did not require corroboration because they were relevant to the child's treatment, diagnosis, and discharge and therefore constituted an exception to the rule against hearsay (see Matter C.L. of E.H. [M.H.], 209 A.D.3d 582, 583, 176 N.Y.S.3d 633 [1st Dept. 2022]).  Similarly, Family Court providently exercised its discretion in determining that A.M.'s specific and consistent out-of-court statements to the agency caseworker detailing the sexual abuse were sufficiently corroborated by the medical records and by her sibling's out-of-court statements to the caseworker (see Matter of Samantha F. [Edwin F.], 169 A.D.3d 549, 549, 95 N.Y.S.3d 31 [1st Dept. 2019], lv dismissed 33 N.Y.3d 1042, 103 N.Y.S.3d 15, 126 N.E.3d 1055 [2019];  Matter of Milagros C. [Rosa R.], 121 A.D.3d 481, 482, 993 N.Y.S.2d 502 [1st Dept. 2014]).  The medical records admitted into evidence, without objection from appellant, which evidenced the presence of “male DNA” found on A.M. during her medical examination along with other biological evidence recovered therefrom further corroborated A.M.'s statements.  The record also contains numerous observations by the caseworker, medical personnel, A.M.'s mother, and A.M.'s sibling that after A.M. reported the incident of sexual abuse, she demonstrated fear, anxiety, distress, and trauma.  These observations further corroborate A.M.'s account (see Matter of Jolieanna G. [Jennifer G.], 202 A.D.3d 622, 623, 159 N.Y.S.3d 854 [1st Dept. 2022]).  Thus, the record as a whole supported a finding of sexual abuse (see Matter of Corey J. [Corey J.], 157 A.D.3d 449, 450, 68 N.Y.S.3d 443 [1st Dept. 2018]).

The court did not deprive appellant of an opportunity to cross-examine the caseworker regarding testimony in which she recounted a statement by J.M. regarding appellant's conduct.  On the contrary, the court invited appellant's counsel to cross-examine the caseworker as to the basis for the testimony, yet counsel chose not to do so.  Nor did the court otherwise restrict appellant from establishing his defense.  Furthermore, the court was entitled to draw the strongest adverse inference against appellant for his failure to testify and present evidence of an alternative version of events (see Matter of Nicole H., 12 A.D.3d 182, 183, 783 N.Y.S.2d 575 [1st Dept. 2004]).

Based upon appellant's behavior which “evinced such an impaired level of judgment as to create a substantial risk of harm” to the children, Family Court properly entered a derivative abuse finding against appellant as to J.G. and J.M., who were living in the home where appellant stayed (see Matter of S.T.B. [Gerald C.], 225 A.D.3d 414, 415, 207 N.Y.S.3d 47 [1st Dept. 2024];  Matter of Cristalyn G. [Elvis S.], 158 A.D.3d 563, 564, 71 N.Y.S.3d 464 [1st Dept. 2018]).  The evidence that appellant sexually abused A.M. demonstrated, by a preponderance of the evidence, a fundamental defect in his understanding of the duties of parenthood (see Matter of Ashley M.V. [Victor V.], 106 A.D.3d 659, 660, 966 N.Y.S.2d 406 [1st Dept. 2013];  Matter of Vincent M., 193 A.D.2d 398, 404, 597 N.Y.S.2d 309 [1st Dept. 1993]).

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