IN RE: JELANI B. (Anonymous).

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

IN RE: JELANI B. (Anonymous). Administration for Children's Services, petitioner; Marlon B. (Anonymous), respondent-respondent; Allan D. Shafter, nonparty-appellant.  (Proceeding No. 1) In the Matter of Chanika B. (Anonymous). Administration for Children's Services, petitioner; Marlon B. (Anonymous), respondent-respondent; Allan D. Shafter, nonparty-appellant.  (Proceeding No. 2).

Decided: September 30, 2008

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, JOSEPH COVELLO, and JOHN M. LEVENTHAL, JJ. Allan D. Shafter, Port Washington, N.Y., attorney for the children, nonparty-appellant pro se. Austin Idehen, Jamaica, N.Y., for respondent-respondent.

In two related child protective proceedings pursuant to Family Court Act article 10, Allan D. Shafter, the attorney for the children, appeals from so much of an order of the Family Court, Queens County (Tally, J.), dated December 18, 2007, as, after a hearing, dismissed so much of the petition in Proceeding No. 2 as alleged that the child Chanika B. was an abused child and dismissed the petition in Proceeding No. 1 alleging that the child Jelani B. was derivatively abused or neglected.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

 With regard to the allegation of sexual abuse, the petitioner submitted evidence to the effect that, on an unspecified date, the subject children and the respondent father were lying on a bed together watching television, and the child Chanika B. fell asleep.   She awoke some time thereafter to find the father's hand on her buttocks.   She testified at the fact-finding hearing that the father placed his hand on her buttocks underneath her clothing, although evidence in the record indicated that she had earlier reported that the father touched her on top of her clothing.   On at least one occasion, she denied that the incident had occurred.   It is undisputed that this was an isolated occurrence, and that no similar incident had occurred previously or since, as of the time of the fact-finding hearing.

Family Court Act § 1012 defines an abused child, in pertinent part, as “a child less than eighteen years of age whose parent or other person legally responsible for his care ․ commits, or allows to be committed an offense against such child defined in article one hundred thirty of the penal law” (Family Ct. Act § 1012[e][iii] ).   Under Penal Law § 130.00, sexual contact is defined as “any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party.   It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing” (Penal Law § 130.00[3] ).

Under the particular facts of this case, the petitioner failed to establish by a preponderance of the evidence that Chanika B. was sexually abused by the father (see Family Ct. Act § 1046[b][i] ).   The element of intent to obtain sexual gratification (see Penal Law § 130.00[3] ), the only element in dispute here, may be inferred from the totality of the circumstances (see Matter of Raymond M., 13 A.D.3d 377, 378, 786 N.Y.S.2d 94;  see also Matter of Kryzstof K., 283 A.D.2d 431, 432, 723 N.Y.S.2d 888).   Here, contrary to the petitioner's contention, the Family Court properly declined to make such an inference (cf. Matter of A.G., 253 A.D.2d 318, 325-326, 686 N.Y.S.2d 396;  compare Matter of Kenny O., 276 A.D.2d 271, 272, 714 N.Y.S.2d 206;  Matter of Xheenan N., 273 A.D.2d 50, 50, 708 N.Y.S.2d 872).

 The Family Court also properly dismissed the petition alleging that the child Jelani B. was derivatively abused or neglected.  “[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of ․ the respondent” (Family Ct. Act § 1046[a][i] ).  “ ‘Even in the absence of direct evidence of actual abuse or neglect of a second child, a derivative finding of neglect should be made where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care, thereby making such a child neglected under Family Court Act § 1012(f)(i)(B)’ ” (Matter of Ramsay M., 17 A.D.3d 678, 794 N.Y.S.2d 105, quoting Matter of Brittney C., 242 A.D.2d 533, 534, 661 N.Y.S.2d 670).  “The focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent's understanding of the duties of parenthood” (Matter of Dutchess County Dept. of Social Servs. v. Douglas E., 191 A.D.2d 694, 694, 595 N.Y.S.2d 800;  see Matter of Andrew B.-L., 43 A.D.3d 1046, 1047, 844 N.Y.S.2d 337;  Matter of Diamond K., 31 A.D.3d 553, 554, 817 N.Y.S.2d 681;  Matter of Maithsa Edourd S., 27 A.D.3d 475, 476, 811 N.Y.S.2d 117;  Matter of Jasmine A., 18 A.D.3d 546, 549, 795 N.Y.S.2d 87).  “Although Family Court Act § 1046(a)(i) allows evidence of abuse or neglect of one sibling to be considered in determining whether other children in the household were abused or neglected, the statute does not mandate a finding of derivative neglect” (Matter of Shawndel M., 33 A.D.3d 1006, 1007, 824 N.Y.S.2d 335 [citations omitted] ).

 Absent a finding that Chanika B. was sexually abused, there was no basis in the record for a finding that Jelani B. was derivatively abused or neglected based on the incident the petitioner alleged to constitute sexual abuse.   Additionally, under the particular facts of this case, the circumstances giving rise to the Family Court's determination that Chanika B. was a neglected child, a single, isolated incident wherein the father struck Chanika B. once on the nose with his open hand, did not demonstrate such an impaired level of parental judgment as to create a substantial risk of harm for Jelani B. and make him a neglected child under Family Court Act § 1012(f)(i)(B) (see generally Matter of Ramsay M., 17 A.D.3d 678, 794 N.Y.S.2d 105;  Matter of Dutchess County Dept. of Social Servs., 242 A.D.2d 533, 534, 661 N.Y.S.2d 670).   Accordingly, the Family Court properly dismissed the petition alleging that Jelani B. was derivatively abused or neglected.

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