In re Timothy O.

178 A.D.2d 1022

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 1991
• Status: Published

Opinion

— Order unanimously modified on the law and facts and as modified affirmed without costs, in accordance with the following Memorandum: In this child protective proceeding (Family Ct Act art 10), the evidence was sufficient to support Family Court’s finding that respondent had abused the children Timothy and Katherine and that finding was not against the weight of the evidence. There was no evidence, however, to support the finding that respondent had abused the child Daniel. Based on respondent’s behavior toward the other children, however, we find that Daniel is a neglected child (see, Department of Social Servs. v Manual S., 148 Mise 2d 988; Matter of T. G., 128 Mise 2d 914).

We determine that the court properly permitted the validator to render her opinion (see, Matter of Nicole V., 71 NY2d 112, rearg denied sub nom. Matter of Francis Charles W., 71 NY2d 890). There is no requirement that the validator meet with the child for a certain period of time.

Because the prior bad acts of respondent were remote in time, we determine that the admission of that evidence and its use by the trial court did not prejudice respondent. Moreover, without the evidence of the bad acts, the record fully supports a finding that respondent had abused the two children, and we so find.

Finally, we reject respondent’s contention that the testimony of respondent’s ex-wife was not proper rebuttal testimony. The record shows that the court, not petitioner, called the witness. (Appeal from Order of Livingston County Family Court, Cicoria, J. — Child Abuse.) Present — Denman, P. J., Boomer, Pine, Lawton and Davis, JJ.