                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 31, 2016                     521103
_________________________________

In the Matter of HADLEY C. and
   Another, Alleged to be
   Neglected Children.

SARATOGA COUNTY DEPARTMENT OF
   SOCIAL SERVICES,                          MEMORANDUM AND ORDER
                    Respondent;

DAVID C.,
                     Appellant.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   February 8, 2016

Before:    McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                              __________


     Richard F. Devall, Saratoga Springs, for appellant.

      Stephen M. Dorsey, County Attorney, Ballston Spa (Michael
J. Hartnett of counsel), for respondent.

      John J. LaBoda Jr., Saratoga Springs, attorney for the
children.

                              __________


Rose, J.

      Appeals from two orders of the Family Court of Saratoga
County (Hall, J.), entered December 18, 2014, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 10, to adjudicate respondent's
children to be neglected.
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      Respondent is the father of two children (born in 2001 and
2007). At all times relevant to the issues presented on appeal,
respondent resided with the children's mother and the younger
child in Saratoga County, while the older child resided in
California with her paternal grandparents. Following a New York
State Police investigation of a report that respondent had
repeatedly engaged in inappropriate sexual contact with both
children, petitioner filed two petitions, one alleging abuse and
the other alleging neglect. After fact-finding and dispositional
hearings, Family Court issued two orders which, among other
things, dismissed the abuse petition, granted the neglect
petition, adjudicated the younger child to be neglected and the
older child to be derivatively neglected, and restricted
respondent's contact with the children to supervised phone calls.
Respondent appeals from both orders.

      As the parties correctly point out, Family Court's
jurisdiction in abuse and neglect proceedings is governed by the
Uniform Child Custody Jurisdiction and Enforcement Act (see
Domestic Relations Law art 5-A [hereinafter UCCJEA]; Domestic
Relations Law § 75-a [4]; Matter of Kali-Ann E., 27 AD3d 796, 797
[2006], lv denied 7 NY3d 704 [2006]). Inasmuch as it is
undisputed that the older child had been living in California
with her paternal grandparents for over a year at the time these
proceedings were commenced, New York is not her home state under
the UCCJEA (see Domestic Relations Law § 75-a [7]; Matter of
Destiny EE. [Karen FF.], 90 AD3d 1437, 1440 [2011], lv dismissed
19 NY3d 856 [2012]). Thus, Family Court's finding that the older
child was derivatively neglected must be reversed, as the court
lacked jurisdiction to make such a determination (see Matter of
Bridget Y. [Kenneth M.Y.], 92 AD3d 77, 86 [2011], appeal
dismissed 19 NY3d 845 [2012]).

      Turning to the merits, petitioner met its burden of proving
by a preponderance of the evidence that the younger child was
neglected (see Family Ct Act § 1046 [b] [i]). As relevant here,
a child is neglected when his or her "physical, mental or
emotional condition has been impaired or is in imminent danger of
becoming impaired as a result of the failure of his [or her]
parent . . . to exercise a minimum degree of care . . . in
providing the child with proper supervision or guardianship, by
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unreasonably inflicting or allowing to be inflicted harm, or a
substantial risk thereof, . . . or by any other acts of a . . .
serious nature requiring the aid of the court" (Family Ct Act
§ 1012 [f] [i] [B]).

      Petitioner presented the testimony of a State Police
investigator who testified that the younger child told him that,
on multiple occasions, respondent "touched her vaginal area with
his hand, put his finger in her vaginal area" and touched her
vaginal area with his clothed penis. The younger child also told
the investigator that "[s]he was scared [and] didn't like the
contact, but she didn't say anything to anybody . . . [because
she felt] that her mom wouldn't believe her."

      Petitioner also presented the expert testimony of a
psychologist who performed a sex abuse evaluation on the younger
child. Consistent with the younger child's statements to the
investigator, the psychologist testified that the child told her
that respondent "touched her in her private area with his hand
[and] his private part" on a number of occasions. The
psychologist also testified that she confirmed with the younger
child that respondent had digitally penetrated her. She did so
by making a fist with an opening on one side to represent a
vagina and then asking the child where respondent had touched
her. In response, the child placed her finger inside the opening
of the psychologist's fist. Based upon the younger child's
detailed description of respondent's conduct, among other
factors, the psychologist opined that, according to the Yuille
Step Wise Protocol for interviewing alleged victims of sexual
abuse, the child's account "was consistent with the accounts of
known sexual abuse victims."

      Respondent argues that petitioner offered no proof that he
touched the younger child for the purpose of his own sexual
gratification or – given that the touching was alleged to have
occurred at night in respondent's bed – that he was even awake
when it happened. Neither of those considerations, however, are
relevant to a determination of whether his conduct placed the
younger child in imminent danger of physical or psychological
harm. Respondent further argues that the psychologist's opinion
was based exclusively upon the younger child's statements
                              -4-                521103
relative to the accounts of known sex abuse victims rather than
neglect victims. Because of this, he claims her opinion was not
relevant to the neglect petition, but only to the abuse petition
that Family Court dismissed. However, regardless of whether the
petition alleges abuse or neglect, expert testimony "that the
child's statements parallel those normally made by abuse victims"
is sufficient to corroborate a child's unsworn statements (Matter
of Nikita W. [Michael W.], 77 AD3d 1209, 1210 [2010]; see Matter
of Rawich v Amanda K., 90 AD3d 1085, 1087 [2011]). Indeed, the
statutory definitions of both terms make clear that abuse is,
effectively, a subset of the more broadly defined concept of
neglect (compare Family Ct Act § 1012 [e], with Family Ct Act
§ 1012 [f] [i] [B]). Accordingly, we agree with Family Court
that the psychologist's opinion sufficiently corroborated the
younger child's out-of-court statements made to the investigator
regarding respondent's sexual contact with her (see Family Ct Act
§ 1046 [a] [vi]; Matter of Destiny C. [Goliath C.], 127 AD3d
1510, 1511 [2015], lvs denied 25 NY3d 911 [2015]; Matter of
Rebecca KK., 61 AD3d 1035, 1036-1037 [2009]).

      While respondent did not testify at the fact-finding
hearing and Family Court declined to draw a negative inference
against him, the court ultimately credited the testimony of
petitioner's witnesses as probative of the truthfulness of the
younger child's account. According deference to the court's
credibility determinations, we agree that the evidence amply
supports the finding that respondent neglected the younger child
(see Matter of Nikita W. [Michael W.], 77 AD3d at 1210-1211; cf.
Matter of Daphne OO. v Frederick QQ., 88 AD3d 1167, 1168 [2011]).

     McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.
                              -5-                  521103
      ORDERED that the orders are modified, on the law, without
costs, by reversing so much thereof as adjudicated Hadley C. to
be a neglected child, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
