| Matter of Ramsey H. (Benjamin K.) |
| 2012 NY Slip Op 06999 [99 AD3d 1040] |
| October 18, 2012 |
| Appellate Division, Third Department |
| In the Matter of Ramsey H., a Child Alleged to be Neglected,Abused and Severely Abused. St. Lawrence County Department of Social Services, Respondent;Benjamin K., Appellant. (And Four Other Related Proceedings.) |
—[*1] David D. Willer, St. Lawrence County Department of Social Services, Canton, forrespondent. Maureen McGaw, Canton, attorney for the children.
Peters, P.J. Appeals (1) from five orders of the Family Court of St. Lawrence County (Potter,J.), entered August 11, 2010, September 8, 2010, September 9, 2010 and September 16, 2010,which granted petitioner's applications, in five proceedings pursuant to Family Ct Act article 10,to adjudicate respondent's children to be neglected, abused and severely abused, and (2) from theorders of protection issued thereon.
Respondent is the biological father of Benjamin I., Austin I., Karissa I., Kaleb I., Jaymen I.and Iryss I. (born in 1996, 1997, 1998, 2000, 2004 and 2008, respectively) and the stepfather ofIsabell Z. (born in 2001). Ramsey H. (born in 1998) is the biological child of respondent'sex-wife. During the time relevant to this appeal, all of the subject children resided withrespondent except for Jaymen and Ramsey, who visited every other weekend. In December [*2]2008, Ramsey, then 10 years old, disclosed to her mother thatrespondent had been sexually abusing her. She was immediately brought to the hospital whereshe repeated these allegations and ultimately underwent a sexual abuse exam. The following day,Ramsey was interviewed by petitioner's caseworker and an investigator from the policedepartment. During the interview, Ramsey revealed that respondent had been forcing her to havesex with him since she was seven years old during times when her mother was not home.
Respondent was arrested on charges that he had sexually abused Ramsey and, thereafter,petitioner commenced these proceedings alleging that respondent had abused, severely abusedand neglected Ramsey and derivatively abused, severely abused and neglected the other childrenby subjecting Ramsey to sexual abuse. After respondent was acquitted of criminal chargesrelating to his alleged sexual abuse of Ramsey, a fact-finding hearing was held on the instantpetitions. Family Court found that respondent had sexually abused Ramsey on at least threeoccasions and adjudicated her to be abused, severely abused and neglected and the other sevenchildren to be derivatively abused, severely abused and neglected. At the dispositional hearing,respondent consented to the terms of orders of disposition relating to each of the subject children.Family Court denied respondent's subsequent CPLR 4404 motion for a new trial or, alternatively,to reopen the proof. Respondent now appeals.
We reject respondent's contention that the record does not support Family Court's findingswith respect to Ramsey, concluding that petitioner met its burden of proving abuse and neglectby a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]; Matter of Keara MM. [Naomi MM.],84 AD3d 1442, 1443 [2011]). Ramsey testified that, on the Saturday after Thanksgiving Day2008, she was visiting respondent's home when he instructed the other children to staydownstairs and clean while he and Ramsey cleaned upstairs. She provided details as to howrespondent forced her to have sexual intercourse while in his bedroom and stated that,immediately following the abuse, respondent told her not to tell anybody or else she would get introuble. Ramsey explained that respondent had been sexually abusing her since she was sevenyears old, and specifically described two other instances when he had similarly lured her into hisbedroom and forced her to have sexual intercourse while the other children remained downstairs.Ramsey's in-court testimony regarding the sexual abuse was consistent with reports to her motherand petitioner's caseworker and, despite respondent's assertions to the contrary, we find nothinginherently incredible or unbelievable about her testimony—which Family Court found tobe credible.
Petitioner also presented the testimony of Ramsey's pediatrician, Azhar Iqbal, who conducteda sexual abuse exam on Ramsey following the disclosure. Iqbal testified that Ramsey expressedno discomfort when he inserted his little finger into her vagina, and some discomfort when heinserted his index finger, both of which should have caused a prepubescent girl of Ramsey's ageto "cry out in pain." He concluded that Ramsey's vaginal opening was much larger than it shouldhave been for a child of her age, which was consistent with her report of chronic sexual abuse.While respondent denied having ever engaged in sexual contact with Ramsey, this created acredibility issue that Family Court resolved against him. According deference to Family Court'sfactual findings and credibility determinations (see Matter of Joseph MM. [Clifford MM.], 91 AD3d 1077, 1079[2012], lv denied 18 NY3d 809 [2012]), we find sufficient evidence to support thedetermination that respondent abused, severely abused and neglected Ramsey (see Matter of Justin CC. [Tina CC.], 77AD3d 1056, 1058 [2010], lv denied 16 NY3d 702 [2011]; Matter of Brooke KK. [Paul KK.], 69AD3d 1059, 1061 [2010]; Matter ofRichard SS., 55 AD3d 1001, 1003-1004 [2008]). Further, because respondent's repeatedsexual [*3]abuse of Ramsey " 'demonstrates such an impairedlevel of parental judgment as to create a substantial risk of harm for any child in [his] care' "(Matter of Justin CC. [Tina CC.], 77 AD3d at 1058, quoting Matter of Ian H., 42 AD3d 701,704 [2007], lv denied 9 NY3d 814 [2007]), we find no reason to disturb the court'sdetermination that he derivatively abused and neglected the other seven children (see Matter of Branden P. [Corey P.], 90AD3d 1186, 1189 [2011]; Matter ofRebecca FF. [David FF.], 81 AD3d 1119, 1120 [2011]; Matter of Sabrina M., 6 AD3d759, 761 [2004]; Matter of Nathaniel TT., 265 AD2d 611, 614 [1999], lvdenied 94 NY2d 757 [1999]).
Nor do we find merit to respondent's argument that he was not a person legally responsiblefor Ramsey's care at the relevant times (see Family Ct Act §§ 1012 [g]; 1046[a] [ii]). Ramsey visited respondent every other weekend and referred to him as "daddy."Moreover, respondent's own testimony confirmed that he occasionally supervised Ramsey andwas left alone with her and the other children, including during all relevant times when thesexual abuse was alleged to have occurred. Thus, Family Court properly found that respondentwas a person legally responsible for Ramsey's care (see Matter of Yolanda D., 88 NY2d790, 796 [1996]; Matter of RebeccaX., 18 AD3d 896, 898 [2005], lv denied 5 NY3d 707 [2005]; Matter ofNathaniel TT., 265 AD2d at 612).
We are similarly unpersuaded by respondent's contention that Family Court erred in notgranting his CPLR 4404 motion.[FN*]CPLR 4404 (b) permits a court, after a nonjury trial, to set aside its decision. In so doing, thecourt may make new findings, take additional testimony and render a new decision, or order anew trial (see CPLR 4404 [b]). The statute leaves the circumstances for granting suchrelief to the discretion of the court (see Matter of Pratt v Schryver, 103 AD2d 1016, 1017[1984]), and its decision whether to grant the motion will not be disturbed absent an abuse of thatdiscretion (see Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, 381[1976]; Singer v Krul, 90 AD3d1378, 1379 [2011], lv dismissed 18 NY3d 953 [2012]).
Here, respondent's motion sought to vacate the fact-finding order and order a new trial or,alternatively, to reopen the proof to present the testimony of three witnesses who he claimsprovided "vital" information at his criminal trial. The motion, however, was made over sixmonths after Family Court rendered its findings, and respondent offered no reasonable excuse forthe delay. Furthermore, as the criminal trial took place prior to the commencement of thefact-finding hearing in these proceedings, the testimony of those witnesses was known to him atthe time of the hearing and thus was not new evidence. Moreover, the proposed testimony waseither irrelevant to the issues to be decided in these proceedings or would not have produced adifferent result. Under these circumstances, we find no abuse of Family Court's discretion(see Matter of Esterle v Dellay, 281 AD2d 722, 724 [2001]; Stambaugh vStambaugh, 226 AD2d 363, 363 [1996]; Matter of Xuong Trieu v Tax Appeals Trib. ofState of N.Y., 222 AD2d 743, 745 [1995], appeal dismissed 87 NY2d 1054 [1996],lv denied 88 NY2d 809 [1996]).[*4]
Respondent's contention that he was denied the effectiveassistance of counsel is likewise without merit. Counsel effectively cross-examined witnesses,elicited testimony favorable to respondent's position, lodged appropriate objections and madecogent arguments for dismissal of the petitions in his closing statement. While counsel did notcall three witnesses who provided testimony at respondent's criminal trial, there has been noshowing that this choice did not reflect legitimate trial strategy (see Matter of Troy SS. v JudyUU., 69 AD3d 1128, 1133-1134 [2010], lv dismissed and denied 14 NY3d 912[2010]; Matter of Thompson v Gibeault, 305 AD2d 873, 875 [2003]). Nor has defendantdemonstrated that the other claimed deficiencies by counsel, even if established, resulted inactual prejudice (see Matter of MichaelDD., 33 AD3d 1185, 1187 [2006]; Matter of Anson v Anson, 20 AD3d 603, 605 [2005], lvdenied 5 NY3d 711 [2005]). Viewed in its totality, the representation afforded respondentthroughout the proceedings was both competent and meaningful.
Finally, inasmuch as respondent consented to the terms of the dispositional orders, he is notaggrieved and therefore has no right to challenge those provisions (see Matter of Justin CC.[Tina CC.], 77 AD3d at 1059; Matter of Bianca M., 57 AD3d 1253, 1253 [2008], lvdenied 12 NY3d 705 [2009]). Respondent's remaining contentions, including his claim thatthe attorney for the children failed to adequately represent the children's interests, have beenreviewed and found to be without merit.
Lahtinen, Stein, Garry and Egan Jr., JJ., concur. Ordered that the orders are affirmed, withoutcosts.
Footnote *: As respondent's motion citedonly CPLR 4404 as the basis for the requested relief, his argument—raised for the firsttime on appeal—that the orders should have been vacated pursuant to Family Ct Act§ 1061 is not preserved (see Matter of Karl L., 224 AD2d 841, 843 [1996];Matter of Chendo O., 193 AD2d 1083, 1085 [1993]).