State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 2, 2016 520625 

________________________________

In the Matter of DANIEL XX.

and Others, Alleged to be 

Abused and/or Neglected 

Children.

SULLIVAN COUNTY DEPARTMENT OF

FAMILY SERVICES, MEMORANDUM AND ORDER

Respondent;

DANIEL F.,

Appellant.

________________________________

Calendar Date: April 25, 2016

Before: Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

__________

Law Office of Benjamin Greenwald, New Windsor (Christopher

J. Cardinale of counsel), for appellant.

Constantina Hart, Sullivan County Department of Family

Services, Monticello, for respondent.

Isabelle Rawich, South Fallsburg, attorney for the

children.

Pattie Leibowitz, Monticello, attorney for the child.

__________

Lahtinen, J.P.

Appeal from an order of the Family Court of Sullivan County

(McGuire, J.), entered March 20, 2014, which granted petitioner's

application, in a proceeding pursuant to Family Ct Act article

10, to adjudicate the subject children to be abused and/or
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neglected.

Respondent is the biological father of a son (born in 2000)

and the stepfather of two daughters (born in 1998 and 1999).1 In

early 2013, the older daughter (hereinafter the child) told a

school administrator that respondent had been subjecting her to

sexual touching. The administrator made a hotline report,

prompting an investigation. Petitioner eventually commenced this

Family Ct Act article 10 proceeding. A fact-finding hearing

ensued and Family Court found that respondent had abused the

child and derivatively neglected the other two children. After

the dispositional hearing, the court issued a no contact

protective order regarding the two stepdaughters and suspended

respondent's contact with his son pending compliance with certain

conditions. Respondent appeals.

We affirm. In this Family Ct Act article 10 proceeding

based on alleged sexual abuse, petitioner was required to prove

by a preponderance of the evidence that respondent committed an

act constituting a sexual crime under Penal Law article 130 (see

Family Ct Act § 1012 [e] [iii]; Matter of Brooke KK. [Paul KK.],

69 AD3d 1059, 1060 [2010]). "'Family Court's findings are

entitled to great deference especially where the critical

evidence is testimonial, in light of the court's ability to

assess the witnesses' credibility, and should generally not be

disturbed absent a conclusion that they lack a sound and

substantial basis in the record'" (Matter of Aleria KK. [Ralph

MM.], 127 AD3d 1525, 1527 [2015], lv dismissed, 25 NY3d 1193

[2015], quoting Matter of Brandi U., 47 AD3d 1103, 1104 [2008]). 

Petitioner's proof included the in-court testimony of the

child, who was 15 years old at the time she testified. She

described one incident of sexual abuse, which occurred during a

family move in August 2012, when respondent was alone with her in

the house, he took her shirt off, forced her to kneel and placed

his penis between her breasts. She recalled another time riding

with him in his truck in February 2013 where he fondled her

1 A third stepchild, a son, was over the age of 18 when

this proceeding was commenced.
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breast both over and then under her clothes. She further related

that, starting when she was about 9 or 10 years old, on various

occasions he would remove her pants or place his hand down her

pants and touch her vagina. The child's therapist and the

caseworker who investigated the reported abuse were also called

as witnesses by petitioner. 

Respondent testified and denied that he had sexually

touched the child. He also called, among others, his wife, who

is the child's mother, and she acknowledged that the child had

not always been consistent in her claims about respondent. There

were significant credibility questions presented by the proof and

Family Court found the child to be a credible witness. We

discern no reason to depart from those credibility determinations

and, with such proof, the record supports Family Court's

determination that respondent abused the child (see e.g. Matter

of Penny Y. [Roxanne Z.], 129 AD3d 1117, 1118 [2015]; Matter of

Miranda HH. [Thomas HH.], 80 AD3d 896, 899 [2011]). 

The remaining arguments do not require extended discussion. 

With respect to respondent's argument that certain out-of-court

statements by the child were not sufficiently corroborated, the

child's in-court testimony regarding the relevant events provided

ample corroboration (see Matter of Alaysha E. [John R.E.], 94

AD3d 988, 988-989 [2012]; Matter of Brandi U., 47 AD3d at 1104;

Matter of Martha Z., 288 AD2d 706, 707 [2001]). The child's

therapist acknowledged reviewing notes apparently to refresh her

memory prior to testifying and, although Family Court should have

granted respondent an opportunity to inspect such notes (see

Family Ct Act § 1046 [a] [vii]; Jerome Prince, Richardson in

Evidence § 6-215 [Farrell 11th ed 1995]), this evidentiary error

was harmless in light of the inconsequential weight given to the

therapist's testimony and the compelling proof of abuse (see

Matter of Julian P. [Colleen Q.], 129 AD3d 1222, 1226 [2015];

Matter of Bentleigh O. [Jacqueline O.], 125 AD3d 1402, 1403

[2015], lv denied 25 NY3d 907 [2015]; Matter of Daniel BB., 26

AD3d 687, 689 [2006]). The finding of derivative neglect is

supported by the repeated sexual abuse perpetrated by respondent

over many years, which "demonstrate[d] such an impaired level of

parental judgment as to create a substantial risk of harm for any

child in his care" (Matter of Ian H., 42 AD3d 701, 704 [2007], lv
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denied 9 NY3d 814 [2007] [internal quotation marks, brackets and

citations omitted]; see Matter of Sabrina M., 6 AD3d 759, 761

[2004]). Respondent's argument that his wife should not have

been allowed to briefly testify about a sexual recording made by

him and her was not properly preserved for our review with

respect to the ground asserted on appeal (i.e., the best evidence

rule). The remaining arguments are unavailing.

Rose, Lynch, Clark and Aarons, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court