In re Daniel R.
Ordered that the appeal from so much of the fact-finding order as relatеs to Daniel R. and Lauren R., is dismissed, without costs or disbursements, as those portions of the fact-finding order were superseded by the order of disposition and are brought up for review on the appeal from the order of disposition; and it is further,
Ordered that the fact-finding order is affirmed insofar as reviewed, withоut costs or disbursements; and it is further,
Ordered that the order of disposition is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered thаt the order granting the petition of Darren R., Sr., for custody of Daniel R. and Lauren R. is affirmed, without costs or disbursements.
The mother, Lucille R., has seven children, Denise R., Larissa R., Darren R., Jr., Devonte R. (hereinafter Devon), Lauren R., Daniel R., and Lorenzo R. (also referred to as Lorenzo D.). Darren R., Sr. (hereinafter the fathеr), is the legal father of the eldest six children, Denise R., Larissa R., Darren R., Jr., Devon R., Lauren R., and Daniel R. The father of Lorenzo R. is George D.
In November 2003 an abuse and neglect proceeding was commenced against the mother, and her live-in companion, George D., based upon allegations that George D. sexually abused Denise and Larissa and the mother did not protect them from the abuse, and that unsanitary conditions were maintained in the hоme. In the fact-finding order, the Family Court, after a hearing, found that the allegations of abuse and neglect were sustained against George D. and the mоther.
Thereafter, on August 24, 2006, the father was awarded temporary custody of Darren and Devon upon the mother’s consent. On October 5, 2006, the father was awarded permanent custody of Darren and Devon upon the mother’s consent, and the case was closed with respect to Denise and Larissa because they had reached the age of 18 years or were approaching the age of 18 years. On January 31, 2007, the father was awarded temporary custody of Daniel and Lauren.
In the order of disposition appealed from, the Family Court,
On apрeal, the mother claims that the conduct of George D. did not constitute sexual abuse, the allegations against her were not sustained, and the evidence did not establish that releasing Daniel and Lauren to the custody of their father was in their best interests.
At a fact-finding hearing in an abuse and/or neglect proceeding pursuant to
During the course of the fact-finding hearing, testimony was elicited from Denise and Larissa that George D. touched their buttocks. Larissa claimed that she was subjeсted to this conduct repeatedly, for a period of about five years. Larissa also claimed that she saw George D. touch Denise on the buttocks. Denise also claimed that George D. repeatedly touched her on her leg or her buttocks. The repetitious nature of the cоnduct casts doubt on George D.’s claim that the touching was accidental.
The mother contends that the Family Court’s finding, that George D.’s touching of Denise аnd Larissa constituted sexual abuse in the third degree, was not supported by the evidence because George D. did not commit these actions for the purpose of sexual gratification. However, the touching of the buttocks or the leg can constitute sexual abuse (see Matter of Selena J., 35 AD3d 610 [2006]; People v Gray, 201 AD2d 961 [1994]; People v Felton, 145 AD2d 969, 971 [1988]), and the intent tо gain sexual gratification may be inferred from the acts themselves (see People v Stewart, 57 AD3d 1312, 1315 [2008], cert denied 558 US —, 130 S Ct 1047 [2010]; Matter of Kryzstof K., 283 AD2d 431 [2001]).
Further, the mother’s claims that George D.’s conduct involved isolated incidents, or that she was not fully aware of the problem, are belied by evidence in the record, including her admission that the father told her that his daughters Denisе and Larissa had complained to him about George D.’s conduct.
Further, the facts presented here, including the finding that Denise and Larissa were abused, demonstrates a flawed understanding of parental duties and impaired parеntal judgment by the mother sufficient to justify a finding that she derivatively neglected the other children (see Matter of Grant W. [Raphael A.], 67 AD3d 922 [2009]; Matter of Abigail S., 21 AD3d 380, 381 [2005]; Matter of Jasmine B., 4 AD3d 353 [2004]).
On the question of the proper placement оf Daniel and Lauren, the “essential consideration” is the best interests of the children, and the Family Court’s exercise of its discretion must have a sound and substаntial basis in the record (Matter of Ramazan U., 303 AD2d 516, 517 [2003]). Under the totality of the circumstances, releasing Daniel and Lauren to the custody of the father had a sound and substantial basis in the record and will not be disturbed.
The mother’s remaining contentions are without merit.
Fisher, J.P., Florio, Belen and Austin, JJ., concur.