Matter of Alijah S. (Daniel S.)

Matter of Alijah S. (Daniel S.) 2015 NY Slip Op 08651 Decided on November 24, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 24, 2015
Acosta, J.P., Saxe, Richter, Gische, Kapnick, JJ.
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[*1] In re Alijah S., and Others, Children Under the Age of Eighteen Years, etc.,

and

Daniel S., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Kathy Chang Park of counsel), for respondent.

George E. Reed, Jr., White Plains, attorney for the children Alijah S. and Juan T.

Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child Alexander T.

Orders of disposition, Family Court, Bronx County (Karen I. Lupuloff, J.), entered on or about May 6, 2014, to the extent they bring up for review an order of fact-finding, same court and Judge, entered on or about May 2, 2014, which, after a hearing, found that respondent-appellant had sexually abused the oldest subject child, his adoptive brother, and derivatively abused the two other subject children, unanimously affirmed, without costs. Appeal from fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the orders of disposition.

Respondent failed to preserve his argument that he was not a person legally responsible for two of the subject children, and we decline to consider it (see Matter of Keydra R. [Robert R.], 105 AD3d 588, 589 [1st Dept 2013]). As an alternate holding, we reject it on the merits (see Family Ct Act § 1012[g]; Matter of Keoni Daquan A. [Brandon W.—April A.], 91 AD3d 414, 415 [1st Dept 2012]).

The findings of sexual abuse and derivative abuse were supported by a preponderance of the evidence (see Family Ct Act § 1046[b][i]; Matter of Dayanara V. [Carlos V.], 101 AD3d 411, 412 [1st Dept 2012]). There is no basis to disturb Family Court's credibility determinations crediting the testimony given by the oldest child and discrediting the testimony given by respondent (Dayanara, 101 AD3d at 412). The child's testimony was competent evidence that respondent sexually abused him on about 20 occasions, "and the fact that [he] did not have a physical injury or that there was no corroboration of [his] testimony does not require a different result" (Matter of Jani Faith B. [Craig S.], 104 AD3d 508, 509 [1st Dept 2013]). Family Court providently exercised its discretion in limiting the scope of cross-examination on collateral matters related to the child's

credibility (People v Antonetty, 268 AD2d 254, 254 [1st Dept 2000], lv denied 94 NY2d 945 [2000]).

Given the nature and severity of the abuse inflicted by respondent upon the oldest child, Family Court properly found derivative abuse as to the other children (Matter of Kaiyeem C. [Ndaka C.], 126 AD3d 528, 529 [1st Dept 2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 24, 2015

CLERK