Matter of Dean T., Jr. (Dean T., Sr.) , 2 N.Y.S.3d 449 ( 2015 )

Matter of Dean T., Jr. (Dean T., Sr.) (2015 NY Slip Op 00689)

Matter of Dean T., Jr. (Dean T., Sr.)

2015 NY Slip Op 00689

Decided on January 29, 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 January 29, 2015
Gonzalez, P.J., Andrias, Saxe, Richter, Clark, JJ.

11333

[*1] In re Dean T., Jr. and Another, Dependent Children Under the Age of Eighteen Years, etc.,

and

Dean T., Sr., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

Carol K. Kahn, New York, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Karen M. Griffin of counsel), for respondent.

Karen P. Simmons, The Children's Law Center, Brooklyn (Barbara H. Dildine of counsel), attorney for the child Dean T., Jr.

Tamara A. Steckler, The Legal Aid Society, New York (Adira Hulkower of counsel), attorney for the child Devonte T.

Order, Family Court, Bronx County (Monica Drinane, J.), entered on or about September 11, 2012, which, after a fact-finding hearing, determined that respondent father had abused his elder son and had derivatively neglected his younger son, unanimously affirmed, without costs.

On May 13, 2014, we held this appeal in abeyance and remanded the matter for an in camera review of the elder son's mental health treatment records, in accordance with Family Court Act § 1038(d), so that the Family Court could determine whether the records were relevant to the central issue of the child's credibility before making its disclosure ruling (117 AD3d 492).

The Family Court conducted the review and found no evidence in the subject records that the child had been fabricating the allegations of abuse, that he had been coached, or that he had mental health issues which would have affected his capacity to tell the truth. The court concluded that the interests of justice did not outweigh the child's need for confidentiality and denied the father's motion to subpoena and review the subject records (Mental Hygiene Law § 33.13[c][1]). Upon our independent review of the record, including review of the mental health records, we affirm this determination.

The record also supports a finding, by a preponderance of the evidence, of abuse and derivative neglect (see Family Court Act § 1046[b][i]). The testimony of the father's elder son as to the father's sexual abuse of him on multiple occasions was detailed and specific and, other than blanket denials, the father presented no evidence that refuted it.

We have considered and rejected the father's additional claims raised on the original appeal and in the supplemental briefing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 29, 2015

CLERK