| Matter of Jewle I. |
| 2007 NY Slip Op 07780 [44 AD3d 1105] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Jewle I. and Others, Children Alleged to be Abusedand/or Neglected. Tompkins County Department of Social Services, Respondent; Julian K.,Appellant. |
—[*1] Ezra G. Sherman, Tompkins County Department of Social Services, Ithaca, for respondent. Luciano J. Lama, Law Guardian, Ithaca. Susan B. McNeil, Law Guardian, Ithaca. Andrea J. Mooney, Law Guardian, Ithaca.
Lahtinen, J. Appeal from an order of the Family Court of Tompkins County (Rowley, J.),entered November 23, 2005, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to be abusedand/or neglected.
Respondent is the father of Jewle I. (born in 1989) and Naomi I. (born in 1990), both ofwhom lived with him. A friend of Jewle, Yasmine J. (born in 1988), resided with them for abouta month, from late December 2004 to late January 2005. On January 26, 2005, Yasmine reportedto various individuals that, on January 25, 2005, respondent had smoked marihuana with her,[*2]exposed his penis to her and pushed her onto a bed where hetouched her breasts and vaginal areas. In early February 2005, petitioner commenced thisproceeding asserting these and other facts as a basis for abuse as to Yasmine and derivativeneglect regarding Jewle and Naomi.
At about the same time the petition was filed, Yasmine disclosed to police that, during theJanuary 25, 2005 incident, petitioner had also pulled off her pants and performed oral sex on her.At a hearing pursuant to Family Ct Act § 1028 held in March 2005, petitioner waspermitted by Family Court to conform the pleadings to the proof with regard to the additionalincident of alleged oral sex. A fact-finding hearing ensued in June 2005, after which FamilyCourt issued a written decision finding that petitioner sustained its burden of proof. Following adispositional hearing, Family Court held, among other things, that petitioner could haveincreased contact leading to unsupervised visitation with his two children based on hisprogression in various treatment programs. Respondent appeals, contending that Family Court'sdetermination was against the weight of the evidence and that permitting petitioner to amend itspleadings constituted reversible error.
A finding of derivative neglect is appropriate where the evidence as to a directly abused childdemonstrates that a respondent's parental judgment is so impaired that the respondent presents asubstantial risk of harm to any child in his or her care (see Matter of Ian H., 42 AD3d 701, 704 [2007]; Matter ofTiffany AA., 268 AD2d 818, 819-820 [2000]). Here, there was evidence that, at varioustimes in January 2005, respondent drank alcohol and smoked marihuana with Yasmine and madesexually suggestive comments to her. According to Yasmine, twice on the morning of January25, 2005, respondent exposed his penis to her and verbally directed her attention to it. Thisoccurred while Jewle was in an adjoining room. He then fondled her while Jewle was still in thehouse and, later, he paid Jewle to go to a store. While she was gone, respondent followedYasmine upstairs into Jewle's bedroom, fondled her breasts and vagina, pushed her onto a bed,removed her pants and performed oral sex upon her. She claimed that she was telling him to stopand trying to push him away during this time. Respondent testified and denied that any of theseevents occurred. Both Yasmine and respondent had inconsistencies in their testimony and weresubjected to questioning on cross-examination that impugned their credibility. Family Court wasfaced with difficult credibility determinations. Its assessment of such issues are generallyaccorded great deference when supported by the record (see Matter of Christian EE., 33 AD3d 1106, 1107 [2006]; Matter of Justin J., 25 AD3d 1031,1033 [2006]; Matter of Daniella HH., 236 AD2d 715, 716 [1997]). Upon review of therecord, and noting some other evidence therein tending to support parts of Yasmine's version ofevents, we are unpersuaded by respondent's contention that Family Court's determination was notsupported by the weight of the evidence. The evidence credited by Family Court establishedabuse of Yasmine and was sufficient to find derivative neglect since it revealed fundamentalflaws in respondent's parental judgment so as to create a substantial risk for Jewle and Naomi (see generally Matter of Hunter YY., 18AD3d 899, 900 [2005]; Matter of Tiffany AA., 268 AD2d at 819-820).
Finally, we find no abuse of discretion in Family Court permitting evidence regarding theoral sex incident during the fact-finding hearing. Respondent was aware of petitioner's proof insuch regard well before the hearing and, in fact, Family Court had permitted such proof at thehearing pursuant to Family Ct Act § 1028 held several months earlier, observing at thattime that petitioner could amend its pleadings to conform to the proof. There was no showingthat respondent was surprised or prejudiced by this proof, and he did seek further time to preparea defense to the allegation (see Matter ofKila DD., 28 AD3d 805, 806 [2006]; Matter of Thomas JJ., 14 AD3d 953, 954 [2005]).[*3]
Cardona, P.J., Crew III, Mugglin and Rose, JJ., concur.Ordered that the order is affirmed, without costs.