                          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
                              -4-                  520625

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
