| Matter of Ashley M.V. (Victor V.) |
| 2013 NY Slip Op 03916 [106 AD3d 659] |
| May 30, 2013 |
| Appellate Division, First Department |
| In the Matter of Ashley M.V. and Others, Children Allegedto be Abused. Victor V., Appellant; Administration for Children's Services,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel),attorney for the child Ashley M.V. Karen Freedman, Lawyers for Children, Inc., New York (Brenda Soloff of counsel),attorney for the children Victor V., Jr. and Isaiah V.
Order of fact-finding, Family Court, New York County (Douglas E. Hoffman, J.),entered on or about July 22, 2010, which, inter alia, after a hearing, found thatrespondent father had sexually abused his daughter Ashley M.V. and derivatively abusedhis sons Victor V. and Isaiah V., unanimously affirmed, without costs. Appeal from orderof disposition, same court and Judge, entered on or about October 27, 2010, whichplaced Ashley M.V. in the custody of the Commissioner of Social Services until thecompletion of the next permanency hearing, unanimously dismissed, without costs, asmoot.
The testimony of respondent's daughter at the fact-finding hearing was competentevidence that respondent sexually abused her and the absence of physical injury or othercorroboration does not require a different result (see Matter of Christina G. [Vladimir G.], 100 AD3d 454[1st Dept 2012], lv denied 20 NY3d 859 [2013]; Matter of Jonathan F.,294 AD2d 121 [1st Dept 2002]). The court properly credited the daughter's testimonyand any inconsistencies in the testimony were peripheral (see Matter of Kylani R. [KyreemB.], 93 AD3d 556 [1st Dept 2012]). Moreover, the caseworker testified thatboth of the child's brothers told her that during the relevant time period, respondentwould send them to the park but would keep his daughter in the apartment. Suchtestimony supports the daughter's testimony that respondent would arrange to be alonewith her before he would abuse her (see Matter of Nicole V., 71 NY2d 112, 124[1987]).[*2]
Petitioner's establishment of its prima facie caseresulted in the burden shifting to respondent to explain his conduct and rebut theevidence of his culpability. However, upon his failure to testify, the court properly drew anegative inference against him (see Matter of Nicole H., 12 AD3d 182, 183 [1st Dept2004]).
The determination that respondent, by sexually abusing his daughter, derivativelyabused his two sons was supported by a preponderance of the evidence. Respondent'sactions showed a fundamental defect in understanding his parental obligations (seeMatter of Marino S., 100 NY2d 361, 374-375 [2003], cert denied 540 US1059 [2003]).
Respondent advances no argument with respect to his daughter's placement onappeal and in any event, the dispositional order from which he appeals has expired (see Matter of Kaila A. [ReginaldA.—Lovely A.], 95 AD3d 421 [1st Dept 2012]). Concur—Sweeny,J.P., Saxe, Moskowitz, Gische and Clark, JJ.