D., RAYGEN, MTR. OF

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 2012
• Docket: CAF 12-00124
• Status: Published

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

1080 CAF 12-00124 PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.

IN THE MATTER OF RAYGEN D. --------------------------------------- CATTARAUGUS COUNTY DEPARTMENT OF SOCIAL MEMORANDUM AND ORDER SERVICES, PETITIONER-RESPONDENT;

TIMOTHY H., RESPONDENT-APPELLANT. (APPEAL NO. 1.)

LEGAL ASSISTANCE OF WESTERN NEW YORK, INC./SOUTHERN TIER LEGAL SERVICES, OLEAN (JESSICA L. ANDERSON OF COUNSEL), FOR RESPONDENT-APPELLANT.

STEPHEN J. RILEY, OLEAN, FOR PETITIONER-RESPONDENT.

WENDY A. TUTTLE, ATTORNEY FOR THE CHILD, ALLEGANY, FOR RAYGEN D.

Appeal from an order of the Family Court, Cattaraugus County (Larry M. Himelein, J.), entered January 4, 2012 in a proceeding pursuant to Family Court Act article 10. The order, among other things, adjudged that respondent abused the subject child.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In appeal No. 1, respondent appeals from an order of fact-finding and disposition determining that he sexually abused a five-year-old girl for whom he acted as a parent substitute. In appeal No. 2, he appeals from an order of fact-finding and disposition determining that he derivatively neglected his two-year-old daughter. Contrary to respondent’s contentions in each appeal, Family Court’s findings of sexual abuse are supported by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]; Matter of Nicholas J.R. [Jamie L.R.], 83 AD3d 1490, 1490, lv denied 17 NY3d 708). The out-of- court statements of the child who was allegedly sexually abused “were sufficiently corroborated by the testimony of an evaluating psychologist who opined that the child’s statements made both to the psychologist and to a caseworker for child protective services during a videotaped interview were credible” (Nicholas J.R., 83 AD3d at 1490; see Matter of Annastasia C. [Carol C.], 78 AD3d 1579, 1580, lv denied 16 NY3d 708). Moreover, the court properly drew “a strong inference against [respondent] for failing to testify” (Matter of Iyonte G. [Charles J.R.], 82 AD3d 765, 767).

Contrary to respondent’s further contention, the evidence -2- 1080 CAF 12-00124

established that respondent “demonstrated a total lack of understanding of the parental role so as to place [his daughter] in imminent danger of harm and accordingly support a finding of neglect” (Matter of Amanda LL. [David NN.], 195 AD2d 708, 710; see Matter of Kennedie M. [Douglas M.], 89 AD3d 1544, 1545, lv denied 18 NY3d 808; Matter of Jovon J., 51 AD3d 1395, 1396).

Finally, we conclude that respondent has failed to demonstrate any basis for modifying the terms of the disposition.

Entered: November 9, 2012 Frances E. Cafarell Clerk of the Court