600 N.Y.S.2d 298 | N.Y. App. Div. | 1993
Appeal from an order of the Family Court of Rensselaer County (Catena, J.), entered March 13, 1992, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 10, to adjudicate his son and another child to be abused.
Following an investigation conducted in connection with a child abuse report, in May 1991 an abuse and neglect petition was filed against respondent relative to two children: Amanda, the nine-year-old daughter of respondent’s girlfriend, Veronica, and David, the three-year-old biological son of Veronica and respondent. The foundation for the charges relative to both children and the subject of the child abuse report was respondent’s alleged sexual abuse of Amanda on several occasions between December 1990 and April 1991. Following a hearing, Family Court initially rejected respondent’s argument that it lacked jurisdiction over him because, as to Amanda, he was not a person legally responsible for her care within the meaning of Family Court Act § 1012. Family Court also found that the evidence presented at the hearing, which included Amanda’s out-of-court statements and testimony that respondent had admitted the sexual abuse, amply supported the conclusion that he had committed the crime of sexual abuse in the first degree upon Amanda.
With regard to the derivative finding of abuse as to David, we begin by noting that proof of abuse of Amanda is, by statute, admissible on the issue of the abuse or neglect of David (see, Family Ct Act § 1046 [a] [i]). Contrary to Family Court’s apparent conclusion, however, evidence of the sexual abuse of one child, standing alone, does not, ipso facto, establish a prima facie case of derivative abuse or neglect against others (see, e.g., Matter of Dutchess County Dept. of Social Servs. v Douglas E., Jr., 191 AD2d 694; Matter of Michelle I., 189 AD2d 998; Matter of Rachel G., 185 AD2d 382; Matter of Rasheda S, 183 AD2d 770; Matter of Cruz, 121 AD2d 901, 902-903). Nonetheless, in appropriate circumstances it can support a finding of derivative abuse or neglect as to other children, even those of the opposite sex (see, Matter of Dutchess County Dept. of Social Servs. v Douglas E, Jr., supra). Appropriate circumstances include the nature of the direct abuse, notably its duration, the circumstances surrounding its commission and whether, on the whole, it can be said to evidence fundamental flaws in the respondent’s understanding of the duties of parenthood (supra; see, Matter of James P., 137 AD2d 461; Matter of Department of Social Servs. v Manual S., supra).
Weiss, P. J., Yesawich Jr., Levine and Mercure, JJ., concur. Ordered that the order is affirmed, without costs.
Apparently criminal charges were also commenced against respondent in connection with these incidents to which he pleaded guilty.