Matter of Nicole B. (Shana B.)

 

2003 NYSlipOp 16953

Decided on September 30, 2003

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

 

Nardelli, J.P., Mazzarelli, Andrias, Ellerin, Marlow, JJ. - 1666

 

[*1]In re Nicole B., A Child Under the Age of Eighteen Years, etc.,

and Shana B., et al., Respondents-Appellants, Administration for Children's Services, Petitioner-Respondent.

 

Judith Stern

Geoffrey P. Berman

George E. Reed, Jr.

Larry A. Sonnenshein

 

Order, Family Court, Bronx County (Gayle Roberts, J.), entered on or about May 10, 2001, finding that the subject child was abused by respondent father and neglected by respondent mother, unanimously affirmed, without costs.

 

A prima facie case of sexual abuse against the father was made out by the child's detailed and consistent out-of-court statements made to various professionals, as corroborated by the testimony of a child psychologist and by medical reports based on two preliminary physical examinations indicating a thinning hymenal wall (see Matter of Nicole V., 71 NY2d 112, 122; Matter of Jaclyn P., 86 NY2d 875, cert denied sub nom. Papa v Nassau County Dept. of Social Servs. 516 US 1093; Matter of Dora F., 239 AD2d 228, 230, lv denied 92 NY2d 805). This showing amply supports the finding of sexual abuse, which followed upon the father's failure to offer any evidence in defense. The finding of neglect against the mother is supported by a preponderance of the evidence (Family Ct Act 1046[b][I]), showing that she failed to cooperate with professionals who sought a full physical examination of the child after preliminary medical findings indicated symptoms consistent with the child's statements of sexual abuse; that she allowed the father into the family home in violation of a temporary order of protection prohibiting any contact between the father and child, and would allow him to live in the home unless prohibited by a final order of protection; and that she believed the father's claims of innocence over the [*2]child's compelling, substantiated claims of sexual abuse. We have considered appellants' other arguments and find them to be unavailing.

 

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

 

ENTERED: SEPTEMBER 30, 2003

 

CLERK

 

 

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