IN RE: I.M. (2024)

Order of fact-finding and disposition (one paper), Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about April 28, 2023, which, to the extent appealed from as limited by the briefs, determined, after a hearing, that appellant sexually abused the subject child I.M. and derivatively abused the other two subject children, unanimously affirmed, without costs.

Family Court's finding that appellant was a person legally responsible for his niece, I.M., within the meaning of Family Ct Act § 1012(g) is supported by the evidence establishing that, for a period of several years, appellant lived with I.M. and her family, picked I.M. up from school, along with his own daughter, and often watched her until her stepfather returned home from work (see Matter of Keniya G. [Avery P.], 144 A.D.3d 532, 533, 41 N.Y.S.3d 500 [1st Dept. 2016];  Matter of Jayline R. [Jose M.], 110 A.D.3d 419, 420, 973 N.Y.S.2d 21 [1st Dept. 2013]).

A preponderance of the evidence supports the finding that appellant sexually abused I.M. several times over a period of several years (see Family Ct Act § 1046[a][vi];  [b][i]).  I.M.'s statements to her therapist were independently admissible and did not require corroboration because they were relevant to I.M's diagnosis and treatment and therefore constituted an exception to the rule against hearsay (see Matter of E.H. [M.H.], 209 A.D.3d 582, 583, 176 N.Y.S.3d 633 [1st Dept. 2022]).

Family Court also providently exercised its discretion in determining that I.M's out-of-court statements made on separate occasions to the agency caseworker, her stepfather, and the forensic interviewer in which she detailed the sexual abuse were sufficiently corroborated by the mental health records and by the record as a whole (see Matter of Corey J. [Corey J.], 157 A.D.3d 449, 450, 68 N.Y.S.3d 443 [1st Dept. 2018]).  The record contains observations, including by I.M.'s therapist and stepfather, that, after I.M. disclosed the sexual abuse, she demonstrated fear, anxiety, distress, and trauma.  These observations further corroborate I.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]).  Additional corroboration is provided by the facts that I.M.'s account included specific details (see Matter of Milagros C. [Rosa R.], 121 A.D.3d 481, 482, 993 N.Y.S.2d 502 [1st Dept. 2014]) and reflected “age-inappropriate knowledge of sexual behavior” (see Matter of Cerenity F. [Jennifer W.], 160 A.D.3d 540, 541, 74 N.Y.S.3d 250 [1st Dept. 2018] [internal quotation marks omitted]).  Furthermore, the court was entitled to draw the strongest negative inference against appellant for his failure to testify (see Matter of Nicole H., 12 A.D.3d 182, 183, 783 N.Y.S.2d 575 [1st Dept. 2004]).

The court properly entered a derivative abuse finding against appellant as to his two biological children.  One of the children lived in the same home with I.M. during the period that appellant was abusing her (see 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 I.M. while their families were living in the same residence demonstrated 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]).

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