In re McI.

Appellate Division of the Supreme Court of New York

In re McI.

140 A.D.2d 255, 528 N.Y.S.2d 385, 1988 N.Y. App. Div. LEXIS 5482

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 24, 1988

StatusPublished

Cited by4 cases

This text of 140 A.D.2d 255 (In re McI.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re McI., 140 A.D.2d 255, 528 N.Y.S.2d 385, 1988 N.Y. App. Div. LEXIS 5482 (N.Y. Ct. App. 1988).

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Opinion

On this record, we agree with Family Court’s finding that the child, five years old at the time of the filing of the petition, was sexually abused but that, while the respondent father had failed to provide a satisfactory explanation for the unrefuted medical evidence indicating such abuse, the evidence as to his actual perpetration of the abuse — statements of the child, which she later retracted and which the respondent refuted in testimony deemed credible by the court — did not meet the requisite preponderance standard. Even though the evidence was insufficient to determine the identity of the perpetrator, it does disclose that the abuse likely occurred during the period in which the father had custody of the child. She had lived with him since she was two. In such circumstances, the safer course is not to return the child to the father (see, Matter of Tantalyn TT., 115 AD2d 799, 801), as Family Court directed, but to continue custody in the Commissioner of Social Services for an additional 18 months, during which period the child [256]*256should continue to reside with her maternal grandmother, with whom she has been residing, both the child and father shall continue in therapy as directed, and the father should be permitted unsupervised daytime visitation.

We have examined the Commissioner’s other claimed error and find it to be without merit. Concur — Kupferman, J. P., Sandler, Sullivan and Rosenberger, JJ.

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On this record, we agree with Family Court’s finding that the child, five years old at the time of the filing of the petition, was sexually abused but that, while the respondent father had failed to provide a satisfactory explanation for the unrefuted medical evidence indicating such abuse, the evidence as to his actual perpetration of the abuse — statements of the child, which she later retracted and which the respondent refuted in testimony deemed credible by the court — did not meet the requisite preponderance standard. Even though the evidence was insufficient to determine the identity of the perpetrator, it does disclose that the abuse likely occurred during the period in which the father had custody of the child. She had lived with him since she was two. In such circumstances, the safer course is not to return the child to the father (see, Matter of Tantalyn TT., 115 AD2d 799, 801), as Family Court directed, but to continue custody in the Commissioner of Social Services for an additional 18 months, during which period the child [256]*256should continue to reside with her maternal grandmother, with whom she has been residing, both the child and father shall continue in therapy as directed, and the father should be permitted unsupervised daytime visitation.

We have examined the Commissioner’s other claimed error and find it to be without merit. Concur — Kupferman, J. P., Sandler, Sullivan and Rosenberger, JJ.

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Bluebook (online)

140 A.D.2d 255, 528 N.Y.S.2d 385, 1988 N.Y. App. Div. LEXIS 5482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mci-nyappdiv-1988.

Opinion

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