IN RE: M.B. and Another (2025)

Order of fact-finding and disposition (one paper), Family Court, Bronx County (David J. Kaplan, J.), entered on or about September 15, 2021, which, to the extent appealed from as limited by the briefs, determined, after a hearing, that respondent-appellant sexually abused the subject child M.B., and derivatively abused the subject child I.M., unanimously affirmed, without costs.

Family Court's finding that respondent sexually abused M.B. and derivatively abused I.M. was supported by a preponderance of the evidence (see Family Court Act §§ 1012[e][iii];  1046[b][i]).  The court providently exercised its discretion in determining that M.B.’s out-of-court statements were reliably corroborated by a video depicting her interview at a child advocacy center, which the court viewed during the fact-finding hearing, and that the record as a whole supported a finding of neglect.  Based on the totality of the circumstances, the court appropriately inferred respondent's intent to gain sexual gratification from his conduct (see Matter of Maria S. [Angel A.], 185 A.D.3d 437, 124 N.Y.S.3d 792 [1st Dept. 2020]).  Additionally, there is no basis to disturb the court's credibility determinations (see Matter of Brittney B. [Marcelo B.], 211 A.D.3d 426, 426, 180 N.Y.S.3d 15 [1st Dept. 2022]).  The court was entitled to draw the strongest negative inference against respondent for his failure to testify (see Matter of Markeith G. [Deon W.], 152 A.D.3d 424, 424, 58 N.Y.S.3d 359 [1st Dept. 2017]).

Contrary to respondent's contention, the admissibility of a child's prior out-of-court statement regarding abuse or neglect was not limited to such statements that were attributable only to children who were the subject of the current proceeding (see Matter of Kaliia F. [Jason F.], 148 A.D.3d 805, 806, 49 N.Y.S.3d 151 [2d Dept. 2017];  Matter of Cory S. [Terry W.], 70 A.D.3d 1321, 1322, 897 N.Y.S.2d 322 [4th Dept. 2010];  Matter of Ian H., 42 A.D.3d 701, 702, 840 N.Y.S.2d 202 [3d Dept. 2007], lv denied 9 N.Y.3d 814, 848 N.Y.S.2d 25, 878 N.E.2d 609 [2007]).

Family Court properly entered a derivative abuse finding against respondent as to I.M. The fact-finding testimony established that I.M. was spending weekends in the home during the period respondent sexually abused M.B. (see Matter of Brittney B., 211 A.D.3d at 427, 180 N.Y.S.3d 15).  M.B.’s statements that I.M. was sleeping in the same room as she when respondent sexually abused her established that respondent's parental judgment and impulse control were so defective as to create a substantial risk of harm to any child in his care (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 Samantha F. [Edwin F.], 169 A.D.3d 549, 550, 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]).  Furthermore, a finding of derivative abuse was appropriate even though I.M. was not aware of the abuse (see Matter of Karime R. [Robin P.], 147 A.D.3d 439, 441, 46 N.Y.S.3d 581 [1st Dept. 2017]).

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