| Matter of Angelica M. (Nugene A.) |
| 2013 NY Slip Op 04339 [107 AD3d 803] |
| June 12, 2013 |
| Appellate Division, Second Department |
| In the Matter of Angelica M. Administration for Children'sServices, Respondent; Nugene A., Appellant. (Proceeding No. 1.) In the Matter of JacobA. Administration for Children's Services, Respondent; Nugene A., Appellant.(Proceeding No. 2.) In the Matter of Jaylee M. Administration for Children's Services,Respondent; Nugene A., Appellant. (Proceeding No. 3.) In the Matter of Nugene A.Administration for Children's Services, Respondent; Nugene A., Appellant. (ProceedingNo. 4.) In the Matter of Shaileen M. Administration for Children's Services, Respondent;Nugene A., Appellant. (Proceeding No. 5.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgowand Elizabeth S. Natrella of counsel), for respondent. Richard Giacoma, Jamaica, N.Y., attorney for the children Angelica M. and ShaileenM. (no brief filed). Ronna Gordon-Galchus, Fresh Meadows, N.Y., attorney for the children Jacob A.,Jaylee M., and Nugene A.
[*2]In five related child protective proceedingspursuant to Family Court Act article 10, the father appeals, as limited by his brief, fromso much of an order of the Family Court, Queens County (Tally, J.), dated February 10,2012, as granted that branch of the petitioner's motion which was for summary judgmenton the issue of the father's derivative abuse of the children Jacob A., Jaylee M., andNugene A.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
In July 2010, the New York City Administration for Children's Services (hereinafterthe ACS) filed petitions pursuant to Family Court Act article 10, alleging, among otherthings, that the father sexually abused his stepdaughters Angelica M. and Shaileen M.and derivatively abused his children Jacob A., Jaylee M., and Nugene A. In August 2011,the father was convicted of course of sexual conduct against a child in the first degree(Penal Law § 130.75 [1] [b]), course of sexual conduct against a child in thesecond degree (Penal Law § 130.80 [1] [b]), rape in the second degree (Penal Law§ 130.30 [1]), and endangering the welfare of a child (Penal Law § 260.10[1]) (two counts) with respect to acts against Angelica M. and Shaileen M.
Thereafter, the ACS moved for summary judgment on the Family Court Act article10 petitions, based upon the criminal convictions and the doctrine of collateral estoppel.The Family Court granted those branches of the motion which were for summaryjudgment on the issues of the father's abuse of Angelica M. and Shaileen M., and thederivative abuse of Jacob A., Jaylee M., and Nugene A. The father appeals from so muchof the order as granted that branch of the motion which was for summary judgment onthe issue of the father's derivative abuse of Jacob A., Jaylee M., and Nugene A.
The Family Court properly granted that branch of the motion of the ACS which wasfor summary judgment on the issue of the father's derivative abuse. The ACS met itsprima facie burden of showing that the doctrine of collateral estoppel is applicable(see Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178,182 [1994]; Matter of IdhailiaP. [Philip S.P.], 95 AD3d 1333 [2012]; Matter of Ajay P. , 60 AD3d 681, 683 [2009]). "Adetermination in a criminal action may be given collateral estoppel effect in a FamilyCourt proceeding where the identical issue has been resolved, and the defendant in thecriminal action had a full and fair opportunity to litigate the issue of his or her criminalconduct" (Matter of JavonT., 64 AD3d 608, 608 [2009]; see Matter of Suffolk County Dept. of SocialServs. v James M., 83 NY2d at 182-183; Matter of Yamillette G. [Marlene M.], 74 AD3d 1066,1067 [2010]; Matter of Leon K.[Marilyn O.], 69 AD3d 856, 857 [2010]; Matter of Ajay P., 60 AD3d at683). The father's convictions of course of sexual conduct against a child in the firstdegree, course of sexual conduct against a child in the second degree, rape in the seconddegree, and endangering the welfare of a child were based upon the same acts alleged toconstitute sexual abuse as set forth in Family Court Act article 10 petitions (seeFamily Ct Act § 1012 [e] [iii]).
Moreover, the father's convictions for sexual acts against Angelica M. and ShaileenM. established a fundamental defect in the father's understanding of his parental dutiesrelating to the care of children and demonstrated that his impulse control was sodefective as to create a substantial risk of harm to any child in his care. Accordingly, theACS demonstrated, prima facie, that the other children were derivatively abused (seeFamily Ct Act §§ 1012 [e] [ii]; 1046 [a] [i]; see also Matter of Leah R. [MiguelR.], 104 AD3d 774 [2013]; Matter of Daniel W., 37 AD3d 842 [2007]; Matter of Kristina R., 21AD3d 560 [2005]; Matter of Tiffany AA., 268 AD2d 818, 820 [2000];Matter of Amanda LL., 195 AD2d 708, 709 [1993]). In opposition, the fatherfailed to raise a triable issue of fact as to either the collateral estoppel effect of hisconvictions or as to whether the other children were derivatively abused (see Matterof Idhailia P. [Philip S.P.], 95 AD3d at 1335; Matter of Yamillette G. [MarleneM.], 74 AD3d at 1067; Matter of Ajay P., 60 AD3d at 683). Rivera, J.P.,Leventhal, Sgroi and Cohen, JJ., concur.