Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
IN RE: CHRISTINA G., and Others, Dependent Children Under Eighteen Years of Age, etc., Vladimir G., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Order, Family Court, Bronx County (Carol R. Sherman, J.), entered on or about July 25, 2011, which, after a hearing, found that respondent-appellant had sexually abused his oldest daughter, derivatively abused the other three subject children, and neglected all four subject children, unanimously affirmed, without costs.
A preponderance of the evidence supports the court's determination that respondent had sexually abused his oldest daughter (see Family Ct Act §§ 1012[e][iii]; 1046[b][I] ). The daughter's sworn testimony at the fact-finding hearing is competent evidence of abuse (Matter of Danielle M., 151 A.D.2d 240, 243, 542 N.Y.S.2d 525 [1st Dept 1989] ), and the absence of physical injury or other corroboration does not require a different result (see Matter of Jonathan F., 294 A.D.2d 121, 744 N.Y.S.2d 362 [1st Dept 2002]; Danielle M., 151 A.D.2d at 243, 542 N.Y.S.2d 525). There is no basis to disturb Family Court's credibility determinations (Matter of Shirley C.-M., 59 A.D.3d 360, 361, 873 N.Y.S.2d 616 [1st Dept 2009] ). Once petitioner established its prima facie case, the burden shifted to respondent to explain his conduct and rebut the evidence of his culpability, which he failed to do (see Matter of Elizabeth S. [Dona M.], 70 A.D.3d 453, 453–454, 894 N.Y.S.2d 51 [1st Dept 2010] ). Although the court did not state that it was drawing a negative inference from respondent's failure to testify, it was entitled to do so (see Matter of Nicole H., 12 A.D.3d 182, 183, 783 N.Y.S.2d 575 [1st Dept 2004] ).
Family Court's determination that respondent had derivatively abused the other children is also supported by a preponderance of the evidence (see Family Ct Act § 1046[a][I] ). Indeed, respondent's daughter testified that one of her brothers had witnessed the sexual abuse and that the other children were present in the apartment when the abuse took place (see Matter of Marino S ., 100 N.Y.2d 361, 374 [2003]; Matter of Brandon M. [Luis M.], 94 A.D.3d 520, 520–521, 942 N.Y.S.2d 79 [1st Dept 2012] ).
A preponderance of the evidence also supports Family Court's finding that respondent had neglected the children by abusing cocaine (see Family Ct Act § 1012[f][I][B] ). An agency caseworker testified that respondent admitted that he had last used cocaine a month before the hearing and was “high” when he returned home, and that he was not in a treatment program. In addition, respondent's daughter testified that on one occasion, respondent had used cocaine while she was in the car. This proof was sufficient to trigger the application of the presumption of neglect under Family Court Act § 1046(a)(iii), which obviates the need to establish the children's impairment or risk of impairment (see Matter of Keoni Daquan A. [Brandon W.-April A.], 91 A.D.3d 414, 415, 937 N.Y.S.2d 160 [1st Dept 2012]; Matter of Nasiim W. [Keala M.], 88 A.D.3d 452, 453, 931 N.Y.S.2d 4 [1st Dept 2011] ). Respondent failed to rebut this prima facie evidence of neglect (id.).
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Decided: November 13, 2012
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)