In the Matter of KAYDENCE O.,Alleged to be an Abused,Severely Abused and/orNeglected Child.ST. LAWRENCE COUNTY DEPARTMENTOF SOCIAL SERVICES,Respondent; MEMORANDUM AND ORDERDESTENE P.,Appellant,et al.,Respondent.(And Another Related Proceeding.)_________________________________Calendar Date: May 3, 2018Before: McCarthy, J.P., Devine, Clark, Aarons and Pritzker, JJ.__________Rural Law Center of New York, Castleton (Kelly L. Egan ofcounsel), for appellant.David D. Willer, St. Lawrence County Department of SocialServices, Canton, for St. Lawrence County Department of SocialServices, respondent.Omshanti Parnes, Plattsburgh, attorney for the child.Christine E. Nicolella, Delanson, attorney for the child.__________Clark, J.Appeal from an order of the Family Court of St. LawrenceCounty (Richey, J.), entered July 7, 2016, which, among otherthings, granted petitioner’s application, in two proceedingspursuant to Family Ct Act article 10, to adjudicate the subjectchildren to be abused and/or neglected.In December 2015, petitioner commenced these Family Ct Actarticle 10 proceedings alleging that Kaydence O. (born in 2003)and Sophia P. (born in 2014) had been abused, severely abusedand/or neglected by respondent Sarah O. (hereinafter the mother)and her paramour, respondent Destene P. (hereinafter respondent),who is the father of the younger child, but not the older child.As relevant here, petitioner alleged that respondent committedthe offenses of rape in the first degree and sexual abuse in thefirst degree against the older child and engaged in acts ofdomestic violence with the mother in the presence of bothchildren. Following a fact-finding hearing, Family Court found,among other things, that respondent abused and neglected theolder child and derivatively abused and derivatively neglectedthe younger child.1 Respondent now appeals, arguing that FamilyCourt’s findings are not supported by a sound and substantialbasis in the record.To support a finding of sexual abuse, petitioner wasrequired to prove, by a preponderance of the evidence (see FamilyCt Act § 1046 [b] [i]), that respondent committed an actconstituting a sexual crime under Penal Law article 130 (seeFamily Ct Act § 1012 [e] [iii] [A]; Matter of Daniel XX. [DanielF.], 140 AD3d 1229, 1230 [2016]). Additionally, as relevanthere, a finding of neglect requires proof that a child’s“physical, mental or emotional condition has been impaired or isin imminent danger of becoming impaired as a result of thefailure of . . . [a] person legally responsible for his [or her]care to exercise a minimum degree of care . . . in providing thechild with proper supervision or guardianship” (Family Ct Act§ 1012 [f] [i] [B]; see Nicholson v Scoppetta, 3 NY3d 357, 368[2004]).At the fact-finding hearing, a State Police investigatortestified that she interviewed the older child in November 2015regarding the allegations of sexual abuse against respondent andthat, at the conclusion of this interview, the child signed asworn statement, which was ultimately admitted into evidence atthe hearing. The investigator testified that, as memorialized inthe child’s sworn statement, the child disclosed four instancesin which respondent forcibly subjected her to sexual contact,including an occasion when respondent rubbed his penis againsther vagina and another instance when he inserted his penis intoher vagina “just a little bit.” Additionally, a child abusepediatrician testified that, during her November 2015 examinationof the child, the child disclosed that respondent had touched herin her vaginal and anal areas more than once and that respondentthreatened that she would never see her mother again if she told.Further, the mother testified that the child sent her a textmessage in May 2015 stating that respondent had “hurt” her, butthat she was not aware that the child was referring to sexualabuse until October 2015, when the mother was purportedlyinformed of the allegations of sexual abuse for the first time byone of petitioner’s caseworkers. While that caseworkercontradicted some of the mother’s testimony, the caseworker alsotestified that she was informed by the mother that the child had,in some respect, disclosed the abuse by text message in May 2015.Contrary to respondent’s contention, the child’sout-of-court allegations of sexual abuse — as testified to by theinvestigator, the child abuse pediatrician and the mother — weresufficiently corroborated by the child’s detailed in-courttestimony (see Matter of Branden P. [Corey P.], 90 AD3d 1186,1188-1189 [2011]; Matter of Justin CC. [Tina CC.], 77 AD3d 1056,1058 [2010], lv denied 16 NY3d 702 [2011]; Matter of Brandi U.,47 AD3d 1103, 1104 [2008]), which was substantially consistentwith and, at times, identical to her prior out-of-courtstatements. Specifically, the child testified that respondentsubjected her or attempted to subject her to sexual contact onfour separate occasions when she was in the fifth grade. Shestated that, on two of these occasions, respondent removed herclothing, but that she was able to stop him before he couldproceed any further. She also stated that, on a different day,respondent got into her bed, removed her bottom clothing and“started rubbing [his penis] against [her] vagina.” She statedthat, during a fourth incident, while she was waiting for part ofher softball uniform to dry, respondent came into her room,removed all of her clothes and “put his penis in [her] vaginajust a little bit.” The child testified to two additionalinstances when she was in the sixth grade in which respondentclimbed into her bed in the middle of the night andunsuccessfully tried to remove her pajamas while he thought shewas sleeping. The child further testified that she disclosed thesexual abuse to the mother when she was in the sixth grade, butthat the mother did not believe her.While respondent denied the allegations of sexual abuse andtestified that he could not have committed the alleged actsbecause he had been physically incapacitated by a back injuryduring the relevant times, Family Court plainly rejectedrespondent’s testimony. According appropriate deference toFamily Court’s findings and credibility determinations (seeMatter of Jade F. [Ashley H.], 149 AD3d 1180, 1182 [2017]; Matterof Aleria KK. [Ralph MM.], 127 AD3d 1525, 1527 [2015], lvdismissed 25 NY3d 1193 [2015]), we find that there is a sound andsubstantial basis in the record to support Family Court’sconclusion that respondent committed the offenses of rape in thefirst degree (see Penal Law § 130.35 [3]) and sexual abuse in thefirst degree (see Penal Law § 130.65 [3], [4]; Matter of BrookeKK. [Paul KK.], 69 AD3d 1059, 1061 [2010]). As such, we see nobasis upon which to disturb Family Court’s finding thatrespondent abused and neglected the older child (see Family CtAct § 1012 [e], [f]; Matter of Daniel XX. [Daniel F.], 140 AD3dat 1231; Matter of Dylan R. [Jeremy T.], 137 AD3d 1492, 1494[2016], lv denied 27 NY3d 912 [2016]; Matter of Tiarra D. [PhilipC.], 124 AD3d 973, 974-975 [2015]).Family Court’s finding of neglect is further supported byevidence establishing that respondent and the mother regularlyengaged in acts of domestic violence in the presence of one orboth of the children. Initially, in challenging Family Court’sfinding in this respect, respondent argues that Family Courterred in allowing the older child and the maternal grandfather totestify as to the mother’s out-of-court statements relating tocertain acts of domestic violence. However, he failed topreserve this argument by objecting to the disputed testimony atthe fact-finding hearing (see Matter of Paul CC. v Nicole DD.,151 AD3d 1235, 1237 [2017]; Matter of Britiny U. [Tara S.], 124AD3d 964, 965 [2015]). Nevertheless, even if respondent’sargument were preserved, we would find that the challengedtestimony was admissible because the mother’s out-of-courtstatements regarding the incidents of domestic violence wereagainst her interest, as admissions of domestic violence cansupport a finding of neglect when accompanied by evidenceestablishing that the physical, mental or emotional condition ofa child was impaired or in imminent danger of becoming impairedas a result of exposure to the domestic violence (see generallyNicholson v Scoppetta, 3 NY3d at 368-369; Matter of Ilona H.[Elton H.], 93 AD3d 1165, 1166-1167 [2012]).Turning to the evidence, the older child testified that shewitnessed respondent perpetrate acts of domestic violence againstthe mother on several prior occasions, including instances inwhich respondent choked the mother by picking her up by herthroat, grabbed the mother’s hair after pushing her to the groundand threatened to “gut” the mother. The older child alsotestified that she observed a cut on the mother’s forehead –which required stitches — and that the mother had told her thatrespondent had caused the cut by throwing a lighter at her whenhe was “mad.” The older child’s testimony was consistent withaccounts that she had previously given to two of petitioner’scaseworkers, Marcel Almond and Jennifer Perryman. Bothcaseworkers testified that the older child had told them that theyounger child had been accidentally struck during one of theepisodes of domestic violence. Almond also testified that,according to the older child, the younger child would often cryduring the mother and respondent’s arguments. Perryman testifiedthat the older child stated that she had been “terrified” by someof the violent episodes and that, in one particular instance, theviolence had caused her to suffer a panic attack.The maternal grandfather testified that the mother andrespondent lived with him and his wife for a period of time. Hestated that, although he had never witnessed respondentphysically hurt the mother, he had observed bruises on themother’s body on several occasions, and the mother had disclosedto him specific instances of physical abuse perpetrated byrespondent. According to the maternal grandfather, the motherstated that respondent beat her when she was pregnant with theyounger child and that, on another occasion, respondent grabbedher and dragged her out of bed. The maternal grandfather and hiswife also testified to an instance in which the police werecalled in response to an episode of domestic violence between themother and respondent and that they observed the older childhyperventilating in the aftermath of that episode. The maternalgrandfather’s wife further testified that she heard respondentand the mother arguing one night and that when she went to checkon them, respondent stated that the mother had tried to hit him,but had hit the younger child instead. Notwithstanding contrarytestimony given by the mother and respondent, which Family Courtdiscredited, the foregoing evidence amply supported a findingthat respondent and the mother repeatedly engaged in acts ofdomestic violence in the presence of the children and that, onmore than one occasion, such acts endangered the children’sphysical, mental and emotional well-being or placed their wellbeingat imminent risk of harm (see Matter of Stephanie RR.[Pedro RR.], 140 AD3d 1237, 1239-1240 [2016]; Matter of CheyenneOO. [Cheyenne QQ.], 135 AD3d 1096, 1097-1098 [2016]; Matter ofPaige AA. [Anthony AA.], 85 AD3d 1213, 1215-1216 [2011], lvdenied 17 NY3d 708 [2011]), thereby providing an additional basisfor Family Court’s finding that respondent neglected the olderchild (see Family Ct Act § 1012 [f] [i] [B]).Finally, there is a sound and substantial basis in therecord to conclude that respondent’s repeated sexual abuse of theolder daughter, as well as the frequent acts of domestic violencethat occurred between him and the mother in the presence of thechildren, demonstrates such an impaired level of judgment so asto place the younger child at a substantial risk while in hiscare (see Matter of Kaylin P. [Derval S.], 159 AD3d 658, 659[2018]; Matter of Kylee R. [David R.], 154 AD3d 1089, 1090-1091[2017], lv denied 30 NY3d 911 [2018]; Matter of Ramsey H.[Benjamin K.], 99 AD3d 1040, 1042 [2012], lv denied 20 NY3d 858[2013]; Matter of Branden P. [Corey P.], 90 AD3d at 1189; Matterof Heather J., 244 AD2d 762, 764 [1997]). As such, we upholdFamily Court’s determination that respondent derivatively abusedand neglected the younger child.McCarthy, J.P., Devine, Aarons and Pritzker, JJ., concur.ORDERED that the order is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
