        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

434
CAF 13-00006
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF EDEN S., ELYSIUM S., AND
ARKADIAN S.
--------------------------------------------
CAYUGA COUNTY DEPARTMENT OF HEALTH AND HUMAN     MEMORANDUM AND ORDER
SERVICES, PETITIONER-RESPONDENT;

JOSHUA S., RESPONDENT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR RESPONDENT-APPELLANT.

SAMUEL P. GIACONA, AUBURN, FOR PETITIONER-RESPONDENT.

JAMES A. LEONE, ATTORNEY FOR THE CHILDREN, AUBURN.


     Appeal from an order of the Family Court, Cayuga County (Mark H.
Fandrich, A.J.), entered November 20, 2012 in a proceeding pursuant to
Family Court Act article 10. The order, among other things, adjudged
that Eden S. is an abused child and Elysium S. and Arkadian S. are
derivatively neglected children.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this proceeding pursuant to article 10 of the
Family Court Act, respondent father appeals from an order determining
that he abused one child and derivatively neglected his two other
children. We reject the father’s contention that Family Court abused
its discretion in denying his motion to dismiss the petition based
upon petitioner’s delay in proceeding with this matter (see § 1049).
“[D]ismissal is a harsh remedy which ought not to be imposed without
the utmost caution. This is particularly true in abuse and neglect
proceedings where the consequences of improvident dismissal may be
deleterious to the welfare of the children in whose behalf the
proceedings are brought” (Matter of Shevon C., 163 AD2d 14, 15; see
Matter of Ismael M., Jr. [Ismael M.], 2 AD3d 312, 313-314). Contrary
to the father’s further contention, the finding of abuse is supported
by the requisite preponderance of the evidence (see § 1046 [b] [i];
Matter of Tammie Z., 66 NY2d 1, 3). Although the father is correct
that the court failed to comply with Family Court Act § 1051 (e) by
specifying the particular sex offense perpetrated upon the child as
defined in Penal Law article 130, we conclude that the error is
“technical in nature and harmless” (Matter of Shannon K., 222 AD2d
905, 906). In light of the fact that the child was five years old at
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                                                         CAF 13-00006

the time of the contact, the specific offense could only be sexual
abuse in the first degree (see Penal Law § 130.65 [3]; Shannon K., 222
AD2d at 906). Contrary to the father’s further contention, where, as
here, the underlying crime is sexual abuse, the court is permitted to
infer the sexual gratification element from the conduct itself if that
conduct involved the deviate touching of the child’s genitalia, which
is the case here (see Matter of Olivia YY., 209 AD2d 892, 893). We
reject the father’s contention that the out-of-court statements of the
child found to be abused were not sufficiently corroborated (see
Matter of Nicole V., 71 NY2d 112, 118-119). We further conclude that
the finding of derivative neglect with respect to the two other
children is supported by a preponderance of the evidence (see Matter
of Sheena D., 27 AD3d 1128, 1128-1129, mod on other grounds 8 NY3d
136).




Entered:   May 9, 2014                         Frances E. Cafarell
                                               Clerk of the Court
