IN RE: DAYQUON G. and Others

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Supreme Court, Appellate Division, First Department, New York.

IN RE: DAYQUON G. and Others, Children Under the Age of Eighteen Years, etc., Lynol P., Respondent-Appellant, Diedra P., et al., Respondents, Administration For Children's Services, Petitioner-Respondent.

Decided: October 27, 2005

ANDRIAS, J.P., SAXE, FRIEDMAN, NARDELLI, MALONE, JJ. John J. Marafino, Mount Vernon, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondent. Steven Banks, The Legal Aid Society, New York (Judith Stern of counsel), Law Guardian.

Order of disposition, Family Court, New York County (Sara P. Schechter, J.), entered on or about March 19, 2003, releasing the subject children to the custody of respondent mother and non-respondent father, under the supervision of the Administration for Children's Services, upon a fact-finding determination that respondent-appellant was legally responsible for, and had neglected and abused, the children, unanimously affirmed, without costs.

Respondent, who did not testify, does not, and, in view of his criminal conviction, cannot deny the alleged abuse.   The finding that respondent was legally responsible for the children is supported by a preponderance of the evidence showing that he is the children's uncle and that he lived with them (Family Ct. Act § 1012[g];  see Matter of Yolanda D., 88 N.Y.2d 790, 793-796, 651 N.Y.S.2d 1, 673 N.E.2d 1228 [1996] ), as well as his failure to testify (see Matter of Nassau County Dept. Soc. Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ).