Matter of Dorlis B. (Dorge B.)

Appellate Division of the Supreme Court of New York

Matter of Dorlis B. (Dorge B.)

132 A.D.3d 578, 18 N.Y.S.3d 327

Appellate Division of the Supreme Court of the State of New York·Decided October 27, 2015·No. 15965A 15965·Published·Cited by 8 cases

Opinion

Orders of fact-finding and disposition, Family Court, Bronx County (Sarah P. Cooper, J.), entered on or about February 5 and 6, 2013, respectively, which, to the extent appealed from as limited by the briefs, determined, after a hearing, that respondent father sexually abused and neglected the eldest child, Dorlis B., and derivatively sexually abused and neglected the child’s two siblings, unanimously affirmed, without costs.

The Family Court’s determination that respondent sexually *579 abused and neglected the eldest child is supported by a preponderance of the evidence, and the testimony of the child was not necessary to make a fact-finding of abuse or neglect (Family Ct Act § 1046 [a] [vi]; [b] [i]). The court properly found that the child’s detailed out-of-court statements were sufficiently corroborated by the expert testimony of a child psychologist that the child suffered from depression, culminating in a suicide attempt, consistent with sexual abuse and not otherwise explained (see Matter of Nicole V., 71 NY2d 112, 121-122 [1987]; Matter of Estefania S. [Orlando S.], 114 AD3d 453 [1st Dept 2014]; Matter of Anahys V. [John V.], 68 AD3d 485 [1st Dept 2009], lv denied 14 NY3d 705 [2010]). The testimony of the guidance counselor concerning the child’s behavior in school and consistent statements concerning the abuse, and the medical records and progress notes recording prior statements by the child, provided further corroboration. The Family Court was entitled to draw a negative inference against the father based on his failure to testify and offer an innocent explanation for his actions (Matter of Estefania S. at 454).

The father’s intent to gain sexual gratification was properly inferred from the acts themselves, absent any other explanation (Matter of Daniel R. [Lucille R.], 70 AD3d 839, 841 [2d Dept 2010]; Matter of Keisha McL., 261 AD2d 341, 342 [1st Dept 1999]).

Concur—Tom, J.P., Renwick, Andrias, Moskowitz and Manzanet-Daniels, JJ.

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Orders of fact-finding and disposition, Family Court, Bronx County (Sarah P. Cooper, J.), entered on or about February 5 and 6, 2013, respectively, which, to the extent appealed from as limited by the briefs, determined, after a hearing, that respondent father sexually abused and neglected the eldest child, Dorlis B., and derivatively sexually abused and neglected the child’s two siblings, unanimously affirmed, without costs.

The Family Court’s determination that respondent sexually *579 abused and neglected the eldest child is supported by a preponderance of the evidence, and the testimony of the child was not necessary to make a fact-finding of abuse or neglect (Family Ct Act § 1046 [a] [vi]; [b] [i]). The court properly found that the child’s detailed out-of-court statements were sufficiently corroborated by the expert testimony of a child psychologist that the child suffered from depression, culminating in a suicide attempt, consistent with sexual abuse and not otherwise explained (see Matter of Nicole V., 71 NY2d 112, 121-122 [1987]; Matter of Estefania S. [Orlando S.], 114 AD3d 453 [1st Dept 2014]; Matter of Anahys V. [John V.], 68 AD3d 485 [1st Dept 2009], lv denied 14 NY3d 705 [2010]). The testimony of the guidance counselor concerning the child’s behavior in school and consistent statements concerning the abuse, and the medical records and progress notes recording prior statements by the child, provided further corroboration. The Family Court was entitled to draw a negative inference against the father based on his failure to testify and offer an innocent explanation for his actions (Matter of Estefania S. at 454).

The father’s intent to gain sexual gratification was properly inferred from the acts themselves, absent any other explanation (Matter of Daniel R. [Lucille R.], 70 AD3d 839, 841 [2d Dept 2010]; Matter of Keisha McL., 261 AD2d 341, 342 [1st Dept 1999]).

Concur—Tom, J.P., Renwick, Andrias, Moskowitz and Manzanet-Daniels, JJ.

Matter of Dorlis B. (Dorge B.), 132 A.D.3d 578, 18 N.Y.S.3d 327 (N.Y. Ct. App. 2015).

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