| Matter of Christina G. (Vladimir G.) |
| 2012 NY Slip Op 07572 [100 AD3d 454] |
| November 13, 2012 |
| Appellate Division, First Department |
| In the Matter of Christina G. and Others, Children Alleged to beAbused and/or Neglected. Vladimir G., Appellant; Administration for Children's Services,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), forrespondent. Tamara A. Steckler, The Legal Aid Society, New York (Judith Waksberg of counsel),attorney for the children.
Order, Family Court, Bronx County (Carol R. Sherman, J.), entered on or about July 25,2011, which, after a hearing, found that respondent-appellant had sexually abused his oldestdaughter, derivatively abused the other three subject children, and neglected all four subjectchildren, unanimously affirmed, without costs.
A preponderance of the evidence supports the court's determination that respondent hadsexually abused his oldest daughter (see Family Ct Act §§ 1012 [e] [iii];1046 [b] [i]). The daughter's sworn testimony at the fact-finding hearing is competent evidence ofabuse (Matter of Danielle M., 151 AD2d 240, 243 [1st Dept 1989]), and the absence ofphysical injury or other corroboration does not require a different result (see Matter ofJonathan F., 294 AD2d 121 [1st Dept 2002]; Danielle M., 151 AD2d at 243). Thereis no basis to disturb Family Court's credibility determinations (Matter of Shirley C.-M., 59 AD3d360, 361 [1st Dept 2009]). Once petitioner established its prima facie case, the burdenshifted to respondent to explain his conduct and rebut the evidence of his culpability, which hefailed to do (see Matter of Elizabeth S.[Dona M.], 70 AD3d 453, 453-454 [1st Dept 2010]). Although the court did not statethat it was drawing a negative inference from respondent's failure to testify, it was entitled to doso (see Matter of Nicole H., 12AD3d 182, 183 [1st Dept 2004]).
Family Court's determination that respondent had derivatively abused the other children isalso supported by a preponderance of the evidence (see Family Ct Act § 1046 [a][i]). Indeed, respondent's daughter testified that one of her brothers had witnessed the sexualabuse and that the other children were present in the apartment when the abuse took place(see Matter of Marino S., 100 NY2d 361, 374 [2003]; Matter of Brandon M. [Luis M.], 94 AD3d 520, 520-521 [1st Dept2012]).[*2]
A preponderance of the evidence also supports FamilyCourt's finding that respondent had neglected the children by abusing cocaine (see FamilyCt Act § 1012 [f] [i] [B]). An agency caseworker testified that respondent admitted that hehad last used cocaine a month before the hearing and was "high" when he returned home, andthat he was not in a treatment program. In addition, respondent's daughter testified that on oneoccasion, respondent had used cocaine while she was in the car. This proof was sufficient totrigger the application of the presumption of neglect under Family Court Act § 1046 (a)(iii), which obviates the need to establish the children's impairment or risk of impairment (see Matter of Keoni Daquan A. [BrandonW.—April A.], 91 AD3d 414, 415 [1st Dept 2012]; Matter of Nasiim W. [Keala M.], 88AD3d 452, 453 [1st Dept 2011]). Respondent failed to rebut this prima facie evidence ofneglect (id.). Concur—Gonzalez, P.J., Saxe, Catterson, Acosta and Gische, JJ.