| Matter of Lauryn H. (William A.) |
| 2010 NY Slip Op 04587 [73 AD3d 1175] |
| May 25, 2010 |
| Appellate Division, Second Department |
| In the Matter of Lauryn H., a Child Alleged to be Abused and/orNeglected. Administration for Children's Services, Respondent; William A., Appellant.(Proceeding No. 1.) In the Matter of Kariam J., a Child Alleged to be Neglected. Administrationfor Children's Services, Respondent; William A., Appellant. (Proceeding No.2.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and RonaldE. Sternberg of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), attorneyfor the children.
In two related child abuse and neglect proceedings pursuant to Family Court Act article 10,William A. appeals from an order of disposition of the Family Court, Kings County (Hamill, J.),dated February 26, 2009, which, upon two fact-finding orders (one as to each child) of the samecourt, each dated February 9, 2009, made after a hearing, finding that he sexually abused thechild Lauryn H. and derivatively neglected the child Kariam J., respectively, released thechildren to the custody of the mother and placed him under the supervision of the Administrationfor Children's Services until February 25, 2010. The appeal from the order of disposition bringsup for review the fact-finding orders.
Ordered that the appeal from so much of the order of disposition as placed the appellantunder the supervision of the Administration for Children's Services until February 25, 2010, isdismissed as academic, without costs or disbursements, as that portion of the order of dispositionexpired by its own terms (see Matter of Jordan E., 57 AD3d 539 [2008]; Matter ofBrian R., 48 AD3d 576 [2008]; Matter of Daqwuan G., 29 AD3d 694 [2006]); and itis further,
Ordered that the order of disposition is affirmed insofar as reviewed, without costs ordisbursements.
Contrary to the contention of the appellant, who was a "person legally responsible for thechild's care" (Family Ct Act § 1042), the evidence adduced at the fact-finding hearing,including the sworn [*2]testimony of Lauryn H., was sufficient toprove, by the requisite preponderance of the evidence, that he committed a sex offense as definedby Penal Law § 130.65 (3) against that child (see Matter of Commissioner of SocialServs. v Clayton F., 242 AD2d 329 [1997]). "Where, as here, there is conflicting testimonyand the matter turns upon the assessment of the credibility of witnesses, the factual findings ofthe hearing court must be accorded great weight" (Matter of Heather S., 19 AD3d 606,608 [2005]; see Matter of Daniel R. [Lucille R.], 70 AD3d 839 [2010]; Matter ofCarine T., 183 AD2d 902 [1992]).
Although the 10-year-old complainant could not testify with certainty at the fact-findinghearing as to the date of the sexual abuse, which allegedly took place more than three yearsearlier, her testimony that the offense did indeed take place was unshaken on cross-examination,and the reliability of her testimony was amplified by her additional testimony detailing thelighting conditions at the time of the incident, that she was seated and clothed as the abuse tookplace while the appellant was standing, and that she told someone at school about the incidentthe day after it happened. Accordingly, "[w]hatever contradictions were present in [Lauryn H.'s]testimony were insufficient to render the whole of her testimony incredible or to otherwisedisqualify such testimony from establishing the facts of the abuse" (Matter of JasmineA., 18 AD3d 546, 548 [2005]).
Moreover, the Family Court properly considered the report filed by the school guidancecounselor with the statewide central register of child abuse and maltreatment (see FamilyCt Act § 1046 [a] [v]; Social Services Law § 413 [1] [a]).
The appellant's contention that the evidence failed to establish his intent to receive sexualgratification during the abuse is without merit. The element of intent to obtain sexualgratification (see Penal Law § 130.00 [3]) may be inferred here from the nature ofthe acts committed and the circumstances in which they occurred (see Matter of KryzstofK., 283 AD2d 431 [2001]; Matter of Daniel R. [Lucille R.], 70 AD3d at 839;Matter of Raymond M., 13 AD3d 377 [2004]).
Additionally, while a finding of sexual abuse of one child does not, by itself, establish thatother children in the household have been derivatively neglected, here, the appellant's abuse ofLauryn H. evinced a flawed understanding of his duties as a parent and impaired parentaljudgment sufficient to support the Family Court's finding of derivative neglect of the childKariam J. (see Matter of Grant W. [Raphael A.], 67 AD3d 922 [2009]; see Matter ofHeather S., 19 AD3d at 608-609).
The appellant's remaining contentions are without merit. Dillon, J.P., Santucci, Hall andLott, JJ., concur.