IN RE: Alexander M.R. (Anonymous). Administration for Children's Services (2026)

Submitted—September 11, 2026

DECISION & ORDER

Twyla Carter, New York, N.Y. (Dawne A. Mitchell, Susan Clement, and Denise Barry of counsel), attorney for the child Alexander M. R.

Harriet Gewirtz, Hollis, NY, attorney for the child Maximillian R.

In related proceedings pursuant to Family Court Act article 10, the father appeals from a modified order of disposition of the Family Court, Queens County (Margaret Morgan, J.), dated October 3, 2025.  The modified order of disposition, insofar as appealed from, upon an order of fact-finding and disposition of the same court dated June 30, 2025, made after fact-finding and dispositional hearings, found that the father sexually abused and neglected the child Alexander M.R. and derivatively abused and neglected the child Maximillian R., and conditioned the father's parental access with the children Alexander M.R. and Maximillian R. upon the consent of the child Alexander M. R.

ORDERED that on the Court's own motion, the notice of appeal from the order of fact-finding and disposition is deemed to be a premature notice of appeal from the modified order of disposition (see CPLR 5520[c] );  and it is further,

ORDERED that the modified order of disposition is modified, on the law, by deleting the provision thereof conditioning the father's parental access with the children Alexander M.R. and Maximillian R. upon the consent of the child Alexander M. R.;  as so modified, the modified order of disposition is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for further proceedings consistent herewith.

In March 2024, the Administration for Children's Services (hereinafter ACS) commenced these related proceedings pursuant to Family Court Act article 10, alleging that the father sexually abused and neglected the children Alexander M.R. (hereinafter Alexander), born in 2016, and Maximillian R. (hereinafter Maximillian), born in 2017.  In a modified order of disposition dated October 3, 2025, upon an order of fact-finding and disposition dated June 30, 2025, made after fact-finding and dispositional hearings, the Family Court, inter alia, found that the father sexually abused and neglected Alexander and derivatively abused and neglected Maximillian, and conditioned the father's parental access with Alexander and Maximillian upon the consent of Alexander.  The father appeals.

At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected (see id. § 1046[b][i];  Matter of Julia M.M. [Luis V.], 247 AD3d 769, 769–770).  Great deference is given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear the testimony, and observe their demeanor (see Matter of Julia M.M. [Luis V.], 247 AD3d at 770;  Matter of Jaretzy F. [Jesus F.-F.], 240 AD3d 892, 893).

Here, ACS demonstrated, by a preponderance of the evidence, that the father sexually abused and neglected Alexander (see Family Ct Act § 1012[e][iii];  [f][i][B];  Penal Law § 130.65[3] ).  Alexander's testimony as to multiple instances of sexual abuse by the father and one incident in which the father ran after the subject children with a gun was sufficient to support a finding of abuse and neglect (see Family Ct Act § 1012[f][i][B];  Matter of Julia M.M. [Luis V.], 247 AD3d at 770;  see also Matter of L.R.E. [LaPorsche E.], 243 AD3d 438, 439).

The father's challenge to the legal sufficiency of the evidence respecting sexual gratification is unpreserved for appellate review, as he made only a general motion to dismiss for failure to establish a prima facie case at the close of ACS's case (see Matter of Dorian C. [Cyncere G.], 233 AD3d 1516, 1517;  Matter of Brandon V., 133 AD3d 769, 769).  In any event, the father's intent to gain sexual gratification could be inferred from the nature of the conduct described by Alexander (see Matter of Julia M.M. [Luis V.], 247 AD3d at 770;  Matter of Ashlyn M. [Robert J.], 228 AD3d 939, 941).

The father contends that the Family Court improperly made the derivative abuse and neglect finding with respect to Maximillian because the petitions only alleged direct abuse and neglect.  Pursuant to Family Court Act § 1051(b), the Family Court may amend the allegations to conform to the proof;  provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations (see Matter of Shayla G. [Lakisha C.], 233 AD3d 682, 683;  Matter of Autumn M. [Sita P.M.], 213 AD3d 852, 853–854).  Here, the factual predicates for the derivative findings were set forth in the petitions.  The record and the evidence adduced during the fact-finding hearing demonstrated that the father was not prejudiced by the court's determination to conform the pleadings to the proof (see Matter of Shayla G. [Lakisha C.], 233 AD3d at 683).  Moreover, the father testified regarding the events alleged in the petitions (see id.;  Matter of N.R. [D.W.], 227 AD3d 596, 596).  Thus, under the circumstances of this case, the court's determination to conform the pleadings to the proof was not an improvident exercise of discretion (see Matter of Shayla G. [Lakisha C.], 233 AD3d at 684;  Matter of Autumn M. [Sita P.M.], 213 AD3d at 854).

Upon conforming the pleadings to the proof, the Family Court's finding that the father derivatively abused and neglected Maximillian was supported by a preponderance of the evidence.  Although a finding of sexual abuse of one child does not, by itself, establish that other children in the household have been derivatively abused or neglected (see Matter of Mirianne A. [George A.], 214 AD3d 864, 865), here, Alexander testified that the abuse, which occurred for approximately two years, always occurred while Maximillian was present in the same bed.  Moreover, Alexander testified that the father threatened to abuse Maximillian if Alexander refused the father's sexual contact, and Alexander also testified that the father ran after the subject children with a gun (see Matter of Ciniya P. [Omar S.W.], 217 AD3d 954, 955).  This behavior evinced the father's flawed understanding of his duties as a parent and his impaired parental judgment sufficient to support the court's finding of derivative abuse and neglect (see id.;  Matter of Mirianne A. [George A.], 214 AD3d at 865).

As the father correctly contends, a court may not delegate its authority to determine parental access to either a parent or a child (see Matter of Destinee A. [Shawn M.—Jacquelyn M.], 246 AD3d 908, 910;  Matter of Mondschein v. Mondschein, 175 AD3d 686, 687).  Here, the Family Court improperly delegated its authority to determine the father's parental access with Alexander and Maximillian to Alexander.  Accordingly, we remit the matter to the Family Court, Queens County, for a new determination as to the father's parental access with Alexander and Maximillian in accordance with the best interests of those children (see Matter of Destinee A. [Shawn M.—Jacquelyn M.], 246 AD3d at 910;  Matter of Shah v. Shah, 186 AD3d 1692, 1694).

The parties' remaining contentions either are without merit or need not be reached in light of the foregoing.

CONNOLLY, J.P., DOWLING, TAYLOR and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court