| Matter of Nyjaiah M. (Herbert M.) |
| 2010 NY Slip Op 03364 [72 AD3d 567] |
| April 27, 2010 |
| Appellate Division, First Department |
| In the Matter of Nyjaiah M. and Others, Children Alleged to beNeglected. Herbert M., Respondent; New York City Administration for Children's Services,Appellant. |
—[*1] Bronx Defenders, Bronx (Mary Ann Barile of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Claire V. Merkine of counsel), LawGuardian.
Order, Family Court, Bronx County (Karen I. Lupuloff, J.), entered on or about December 7,2009, which dismissed three derivative neglect petitions against the respondent father on theground that a prima facie case of derivative neglect had not been presented, unanimouslyreversed, on the law, without costs, and the matter remanded to the Family Court, Bronx County,for a continuation of the fact-finding hearing.
The petitions at issue were supported by evidence sufficient to establish a prima facie case ofderivative neglect. Family Court erred in concluding that the 2004 fact-finding, that respondenthad over the course of four years sexually abused his older daughter, could not serve as a basisfor a finding of derivative neglect warranting the removal of his three young daughters from hiscare. The 2004 fact-finding was based on respondent's admission that he improperly touched hisdaughter's genitals, evincing a profoundly impaired level of parental judgment that would placeany child in the respondent's care at the risk of harm (see Matter of Grant W. [Raphael A.], 67 AD3d 922 [2009]). Thecourt's emphasis on the fact that the 2004 finding was over five years old is of no moment (see e.g. Matter of Ahmad H., 46 AD3d1357 [2007], lv denied 12 NY3d 715 [2009]), particularly where the sexual abusetook place continually over a four-year period (see e.g. Matter of Chelsea M., 61 AD3d 1030, 1032 [2009]), andthere was no evidence in the record to support a reasonable belief that respondent's proclivity forsexually abusing children has changed (see e.g. Matter of Ahmad H., 46 AD3d at1357-1358). Indeed, petitioner showed that there was no change in respondent's pattern ofconduct by presenting evidence of his abuse of the subject children, which included blowing onthe exposed genitals of his then six-month-old [*2]daughter andplacing the head of his three-year-old daughter under his shirt and near his crotch in actionsapproximating oral sexual contact. Concur—Gonzalez, P.J., Catterson, Moskowitz,Renwick and Richter, JJ.