| Matter of Estefania S. (Orlando S.) |
| 2014 NY Slip Op 00735 [114 AD3d 453] |
| February 6, 2014 |
| Appellate Division, First Department |
| In the Matter of Estefania S. and Another, Children Allegedto be Abused. Orlando S., Appellant; Administration for Children's Services,Respondent. |
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Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel),for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel),attorney for the children.
Order of fact-finding and disposition, Family Court, Bronx County (Jane Pearl, J.),entered on or about December 7, 2012, insofar as it found that respondent sexuallyabused the subject child Estefania S. and derivatively abused the subject child AllinsonS., unanimously affirmed, without costs. Appeal from that portion of the order whichreleased the subject children to their mother, and placed respondent under thesupervision of the Administration for Children's Services for a period of one year, andimposed certain conditions for one year, unanimously dismissed, without costs, as moot.Appeal from order of protection, same court and Judge, entered on or about December 7,2012, which directed respondent to stay away from and not communicate with thechildren for a period of one year, unanimously dismissed, without costs, as moot.
The Family Court's determination that respondent sexually abused Estefania issupported by a preponderance of the evidence (see Family Ct Act § 1046[b] [i]; Matter of Sade B. [ScottM.], 103 AD3d 519, 520 [1st Dept 2013]). The court properly found thatEstefania's detailed out-of-court statements were sufficiently corroborated by thetestimony of her psychotherapist that she suffers from post-traumatic stress disorder andother symptoms consistent with sexual abuse, including nightmares and suicidal ideation,her sister's out-of-court statements to the caseworker, and the caseworker's testimony (see Matter of Anahys V. [JohnV.], 68 AD3d 485 [1st Dept 2009], lv denied 14 NY3d 705 [2010]).There is no reason to disturb the court's evaluation of the evidence, including itscredibility determinations, which are supported by the record (Matter of Sade B.[Scott M.], 103 AD3d at 520).
The court properly drew the strongest negative inference from respondent's failure to[*2]testify (see Matter of Ashley M.V. [Victor V.], 106 AD3d 659, 660[1st Dept 2013]).
The finding of derivative abuse is supported by the finding that respondent sexuallyabused the older daughter since his actions "showed a fundamental defect inunderstanding his parental obligations" (id.). Moreover, Allinson's out-of-courtstatements that respondent had requested massages from her, in light of Estefania'sstatements that he had initiated some incidents of sexual abuse by asking for backmassages, at roughly the same age, provide further support for the finding of derivativeabuse.
We have considered respondent's remaining arguments and find them unavailing.Concur—Sweeny, J.P., Andrias, Freedman, Richter and Clark, JJ.