IN RE: J.M. (2024)

Order of fact-finding and disposition (one paper), Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about June 29, 2023, which, to the extent appealed from as limited by the briefs, found that respondent-appellant sexually abused the child A.M. and derivatively abused the three other children, unanimously affirmed, without costs.

A preponderance of the evidence supports the court's determination that appellant sexually abused A.M., his stepchild, and derivatively abused the three younger children (see Family Court Act §§ 1012[e][iii];  1046[b];  Matter of Jani Faith B. [Craig S.], 104 A.D.3d 508, 509, 961 N.Y.S.2d 135 [1st Dept. 2013]).  The finding of sexual abuse was supported by the child's sworn testimony, which the court found to be credible, as well as the child's records from New York–Presbyterian Hospital, which included her statements similarly describing the incidents of sexual abuse (see Matter of Karime R. [Robin P.], 147 A.D.3d 439, 440, 46 N.Y.S.3d 581 [1st Dept. 2017];  Matter of Alijah S. [Daniel S.], 133 A.D.3d 555, 556, 21 N.Y.S.3d 206 [1st Dept. 2015], lv denied 26 N.Y.3d 917, 2016 WL 531602 [2016]).  Family Court properly determined that the child's out-of-court statements in the hospital records were independently admissible and did not require corroboration because they were relevant to her treatment, diagnosis, and discharge (see Matter of E.H. [M.H.], 209 A.D.3d 582, 583, 176 N.Y.S.3d 633 [1st Dept. 2022]).

Furthermore, appellant's intent to gain sexual gratification from placing the child's hand on his genitals, pressing his genitals against the child's while they were wrestling, repeatedly slapping the child's posterior, and watching the child while she showered, was properly inferred from the acts themselves (see Matter of Maria S. [Angel A.], 185 A.D.3d 437, 437, 124 N.Y.S.3d 792 [1st Dept. 2020]).

There is no basis for disturbing Family Court's credibility determinations, including its evaluation of the child's testimony and its finding that much of appellant's testimony was not credible (see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975];  Matter of C.F. [Carlos F.], 220 A.D.3d 506, 506–507, 197 N.Y.S.3d 508 [1st Dept. 2023], lv. denied 41 N.Y.3d 901, 2024 WL 629778 [2024];  Matter of Keydra R. [Robert R.], 105 A.D.3d 588, 589, 964 N.Y.S.2d 417 [1st Dept. 2013]).  Appellant's testimony confirmed certain details of his interactions with the child, including that he frequently slapped her posterior, wrestled with her while other family members were present, and used the bathroom while the children were showering (see Matter of M.S. [Andrew S.], 198 A.D.3d 547, 548, 152 N.Y.S.3d 813 [1st Dept. 2021]).

The finding that appellant sexually abused the child demonstrated a fundamental defect in his understanding of the responsibilities of parenthood and placed the younger children, who were in the home during the incidents of the abuse, at imminent risk of abuse (see Matter of Xzandria B. [Nasheen B.], 183 A.D.3d 408, 409, 121 N.Y.S.3d 597 [1st Dept. 2020]).  A finding of derivative abuse is appropriate regardless of whether the younger children were aware of the abuse (see Matter of Karime R., 147 A.D.3d at 441, 46 N.Y.S.3d 581).  Although two of the younger children were appellant's biological children and the third child was a boy, those distinctions do not undermine the finding of derivative abuse based on appellant's impaired level of parental judgment (see Matter of Krystal N. [Juan R.], 193 A.D.3d 602, 602, 142 N.Y.S.3d 808 [1st Dept. 2021], lv denied 37 N.Y.3d 906, 2021 WL 4098595 [2021];  Matter of Lesli R. [Luis R.], 138 A.D.3d 488, 489, 29 N.Y.S.3d 317 [1st Dept. 2016]).