IN RE: M.M. (2026)

Order of disposition, Bronx County (Fiordaliza A. Rodriguez, J.), entered on or about March 7, 2025, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about November 22, 2024, which found that appellant sexually abused L.H., a child for whom appellant was legally responsible, and derivatively abused and neglected Zo.B., Zy.B., E.B., and M.M., appellant's biological children, unanimously affirmed, without costs.  Appeal from the fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

Family Court providently exercised its discretion in finding that appellant was a person legally responsible for L.H within the meaning of the Family Court Act at the time of the abuse (see Family Ct Act § 1012[g];  Matter of Yolanda D., 88 N.Y.2d 790, 796, 651 N.Y.S.2d 1, 673 N.E.2d 1228 [1996] ).  The undisputed fact-finding testimony of ACS's caseworker and L.H's nonrespondent mother demonstrated that the child's mother and appellant were in an intimate relationship when he sexually abused L.H.;  appellant was left alone with L.H. and the other children siblings on weekends;  and he provided financial assistance for the children.  This testimony permitted an inference of substantial familiarity between L.H., the child's siblings, and appellant at the time of the abuse (see Matter of Karime R. [Robin P.], 147 A.D.3d 439, 440, 46 N.Y.S.3d 581 [1st Dept 2017] ).

For the first time on appeal, appellant denies that he is Zo.B.'s, Zy.B.'s, and E.B.'s biological father, and we decline to review appellant's unpreserved claim (see Matter of Samantha M. [Allison Y.], 112 A.D.3d 421, 422, 976 N.Y.S.2d 456 [1st Dept 2013] ), especially since appellant affirmatively represented to Family Court that he is the father of those children (see Diarrassouba v. Consolidated Edison Co. of N.Y. Inc., 123 A.D.3d 525, 525, 999 N.Y.S.2d 33 [1st Dept 2014] ).

A preponderance of the evidence supports Family Court's determination that appellant sexually abused and neglected L.H. (see Family Ct Act §§ 1012[f][i][B];  1046[b][i] ) in violation of Penal Law § 130.52. The court providently determined that the seven-year-old's out-of-court statements during a July 1, 2023 forensic interview were admissible.  The child stated that appellant had touched the child underneath the underwear earlier that day and placed his hand inappropriately on the child's genitals after the child's mother left L.H. and the child's siblings with appellant alone in the mother's vehicle.  The child further stated that appellant had, on prior occasions, touched the child inappropriately and used his privates to touch the child's privates while the child and the child's siblings were sleeping in the bedroom during his weekend visits at the mother's home.  These statements were sufficiently corroborated by L.H.'s mother, who testified that appellant spent the weekends with her and her children.  On July 1, 2023, upon her return to the vehicle, L.H. had “looked startled” and told her that appellant had touched the top and middle of the child's private parts inside the child's underwear with his fingers while she was getting groceries.  L.H.'s mother further testified that she saw that appellant “had an erection.”

L.H.'s out-of-court statements to staff at Cornell Hospital were independently admissible and did not require corroboration because they were relevant to L.H.'s treatment, diagnosis and discharge and therefore constituted an exception to the rule against hearsay (see Matter of J.M [Felipe A.], 233 A.D.3d 586, 586–587, 223 N.Y.S.3d 83 [1st Dept 2024] ).  L.H.'s out-of-court statements that the child felt scared and uncomfortable during the abuse demonstrates that the child's physical, mental, or emotional health had been impaired or was at an imminent risk of impairment (see Matter of Serenity H. [Tasha S.], 132 A.D.3d 508, 509, 19 N.Y.S.3d 22 [1st Dept 2015] ).

Appellant presented no credible evidence in his defense (see Matter of Elizabeth S. [Dona M.], 70 A.D.3d 453, 453–454, 894 N.Y.S.2d 51 [1st Dept 2010] ).  Given appellant's failure to testify, Family Court was entitled to draw the strongest negative inference against him (see Karime R., 147 A.D.3d at 441, 46 N.Y.S.3d 581;  see also Matter of Raymond F., 212 A.D.3d 406, 407, 181 N.Y.S.3d 236 [1st Dept 2023] ).

Family Court properly determined that appellant derivatively neglected and abused L.H.'s siblings.  The young ages of Zo.B., Zy.B., and E.B. at the time of the abuse does not undermine the derivative abuse and neglect finding (see Karime R., 147 A.D.3d at 441, 46 N.Y.S.3d 581), nor does the fact that some of the children may not have been present when the abuse occurred (see id.).  In any event, the evidence of appellant's sexual abuse of L.H. demonstrates that his 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 M.T. [Lerry T.], 244 A.D.3d 637, 639, 249 N.Y.S.3d 399 [1st Dept 2025] ), including his biological child M.M, who was approximately the same age as L.H.

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