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In re Lucy T.

125 A.D.3d 466 Court N.Y. App. Div. Decision date 2015-02-10 English

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p. 466
In the Matter of Lucy T. and Others, Children Alleged to be Abused and/or Neglected. Commissioner of Social Services of the City of New York, Appellant-Respondent; Luz M., Respondent-Appellant; Rafael A., Respondent. In the Matter of Lucy T. and Others, Children Alleged to be Abused and/or Neglected. Commissioner of Social Services of the City of New York, Appellant-Respondent; Luz M., Respondent-Appellant, et al., Respondent.
[3 NYS3d 346]—

Order of disposition, Family Court, Bronx County (Gayle P Roberts, J.), entered on or about May 24, 2013, insofar as it brings up for review a fact-finding determination, same court and Judge, entered on or about May 23, 2013, which, inter alia, found that respondent Rafael A. abused and neglected Lucy T. and that respondent mother Luz M. neglected Lucy T., and denied petitioner’s application for additional findings of child abuse of Lucy T, against the mother, unanimously affirmed, without costs. Order of disposition, same court and Judge, entered on or about June 4, 2013, insofar as it brings

p. 467
up for review the aforementioned fact-finding determination, which, inter alia, found that respondent mother Luz M. derivatively neglected Yolicia M., Diagenice R, Felicity M. and Mahoganie A., and denied petitioner’s applications for additional findings of derivative child abuse of those children against respondent Luz M. and respondent Rafael A., unanimously modified, on the law and the facts, to find that respondent Rafael A. derivatively abused the four children, and otherwise affirmed, without costs.

Family Court properly found that respondent Rafael A., the mother’s boyfriend, was a legally responsible person who abused Lucy T., and, respectively, neglected and derivatively neglected her and the other four children (see Matter of Yolanda D., 88 NY2d 790 , 796 [1996]). However, it should have further found that Rafael also derivatively abused the other four children (see Matter of Christina G. [Vladimir G.], 100 AD3d 454 [1st Dept 2012], lv denied 20 NY3d 859 [2013]).

The findings of neglect and derivative neglect against both respondents with respect to Lucy T. and the other four children were also proper. Rafael A.’s abuse of Lucy T. while the other four children were in the room, and the mother’s permitting Rafael back into the home after learning of his abuse of Lucy T., placed all five children at risk (see Matter of Roy R., 6 AD3d 213 , 213-214 [1st Dept 2004]; Matter of Taliya G. [Jeannie M.], 67 AD3d 546 , 547 [1st Dept 2009]).

However, there is no evidence that the mother abused or derivatively abused any of her children (see Matter of Dayanara V. [Carlos V.], 101 AD3d 411 [1st Dept 2012]).

We have considered the remaining arguments and find them unavailing.

Concur — Tom, J.P., Friedman, Andrias, DeGrasse and Gische, JJ.

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