Before the Court is an Article 10 Child Abuse proceeding brought by the Department of Social Services (hereinafter referred to as "DSS") on behalf of Isabella V., born September 11, [*2]1996.

The Petition names the child's father, Jose V., as the respondent.

The Petition alleges that:

a) The respondent father has committed, or allowed to be committed, a sex offense upon said child, as defined in the penal law. The respondent failed to provide said child with proper supervision or guardianship, and said child's physical, mental and emotional condition has been impaired and/or are imminent danger of becoming impaired as a result of the failure of the respondent to exercise a minimum degree of care, requiring the aid of this Court, to wit:

b) On or about 07/08/2009, the child Isabella, disclosed that the respondent father made her feel uncomfortable when he would rub lotion on her under her pajamas. The child stated that the respondent father did not rub or touch her vagina, but would rub and touch above the vagina. The respondent father also made the child uncomfortable when he whistled at her, slapped her butt, placed his head on her chest when he hugged her and attempted to kiss her with an open mouth. The child stated that the incidents occurred when she visited him from about the time she was six (6) years old until she was about ten (10) years old. The child stated that while she visited the respondent father he would drink alcohol to intoxication and when he would drink, he would attempt to kiss her with an open mouth. The child's mother received an order of protection against the respondent father after the child disclosed the incidents to her.

A fact-finding hearing was held on June 11, 2010, June 15, 2010, June 18, 2010 and

October 18, 2010. Written summations were submitted and received by the Court by November 22, 2010.The Presentment Agency called two witnesses: Tracy Peckham, the caseworker for the DSS, and the child, Isabella V.

The Respondent's Attorney called three witnesses: Joseph V., the respondent's son, Jose V., the respondent, and Dr. Leonard Gries.

The subject child, Isabella V., born September 11, 1996 and Joseph V., born June 27, 1988, are the children of the respondent, Jose V. and Sharon A.

It is clear from the testimony that Ms. A. and Mr. V. were married to one another, but then divorced in 2004. Pursuant to the divorce, Ms. A. was awarded custody of the two children, with visitation to Mr. V. every other weekend and one additional day during the week. While both children initially lived with their mother, Joseph eventually moved in with his father, claiming physical and verbal abuse in his mother's home.

During the marriage, the family lived for a time in Pennsylvania. There was a history of domestic violence, as well as criminal arrests as follows:

In April, 2002, Sharon V. was arrested for throwing a plate at Jose V. Mr. V. later dropped the charges. In December, 2002, the father was arrested for Driving While Intoxicated (DWI) in Pennsylvania, where he took a plea and underwent therapy. In April, 2003, the mother threw an object at the father. She was arrested for the incident. Mr. V. was also arrested at that time for violating an Order of Protection that had been issued in the state of Pennsylvania. [*3]

In May, 2008, Sharon A. petitioned in Queens Family Court and was granted a Temporary Order of Protection (TOP) against Mr. V. for an incident where Mr. V. and his son Joseph V. went to the home of the mother, allegedly to check up on Isabella. Mr. V. filed for custody of Isabella on May 9, 2008, after Isabella requested that he do so. In June, 2009, Ms. A. filed to modify the Order of Protection to include Isabella, claiming Mr. V. made threats against Isabella's friends. In May, 2010, after a full hearing, Ms. A.'s petition for an Order of Protection against Mr. V. was dismissed for failure to state a cause of action.

After selling the Pennsylvania home in 2002, the parties moved to Queens County, where they lived together until the divorce. After the divorce, Mr. V. and Ms. A. remained in Queens County, although in separate residences. Isabella and her father communicated almost daily, via telephone and text messages.

On May 7, 2008, Isabella texted her father expressing a desire to live with him rather than her mother. After questioning her as to what prompted this request, she reported to him that her mother had frequent anxiety attacks and was keeping her awake late at night. Mr. V. went to Isabella's school on May 8, 2008, to speak with her guidance counselor. Upon verifying that Isabella was falling asleep in class and that her grades had begun to drop, Mr. V. filed a petition for custody of Isabella in Queens Family Court on May 9, 2008. Mr. V. also called the Administration for Children's Services (ACS) requesting an investigation into the circumstances in Isabella's home.

In February, 2009, Isabella moved with her mother and stepfather from Queens to Long Beach, Nassau County. Isabella continued to live with her mother in Long Beach and visit with her father every other weekend. After Isabella moved to Long Beach, Mr. V. noticed many changes in Isabella, specifically that she was wearing dark clothing and nail polish, short skirts and tight clothing, as well as dark make-up. On May 31, 2009, Mr. V. learned from his sister that Isabella was seeing a seventeen year old boy. He felt this was not appropriate, as Isabella was only twelve years old.

Mr. V. spoke with Isabella on May 31, 2009, during their visitation. He told her that it was inappropriate for her to see a seventeen year old boy. A few days later Mr. V. was served with an Order of Protection, ordering that he stay away from Isabella.

Approximately one week later, Mr. V. learned from Isabella's social websites that she was cutting herself. He called CPS, concerned for her well being.

On July 7, 2009, a call was made to the State Central Registry. Isabella disclosed that her father was touching her inappropriately. The narrative of the State Central Registry is as follows:

While on visitation with the father, Jose, the father would make twelve year old Isabella sleep in bed with him. While in bed, the father would caress the child's back underneath her clothes. When the child was ten years old, the father rubbed lotion on the child's body and then touched the child's vagina. The father has walked in the room when the child has been naked. When the child was eight years old, the father gave the child alcohol. Also, when the child was eight years old, the aunt, Rachel, watched pornography in the child's presence. The roles of the mother, Sharon, stepfather, Faruk and twenty-one year old sibling, Joseph, are unknown. [*4]

The Testimony

Isabella V. testified that she is thirteen years old and in the seventh grade. She stated that her father is Jose V., her mother is Sharon A. and that she has one brother, Joseph V., who is twenty-two years old.

Isabella reported that her parents divorced when she was approximately six years old and has lived with her mother since that time, visiting with her father every other weekend until her last visit on May 31, 2009.

Isabella testified that her father lives in an apartment in Middle Village, Queens, with her brother, Joseph. She described her visits, indicating that they would either stay at home or go to the park, movies and restaurants.

Isabella stated that until May 31, 2009, she would speak with her father regularly every night, but denied that her relationship with her father was good.

Isabella testified that her brother is eight years older than she. She stated that they did not have a good relationship because he was usually working when she visited and they had no opportunity to spend time together.

Isabella acknowledged that she texted her father on May 7, 2008, telling him that she wanted to leave her mother and live with him.

Isabella stated that she last saw her father on May 31, 2009. She testified that on May 31, 2009, she had a conversation with her father where he told her that he did not like the way she was lately, in that she was not calling him as often and that he did not like her style of dress and dark make-up. He also discussed with her that he felt it was inappropriate for her to be dating a seventeen year old boy. Isabella also said that during this conversation, her father made threatening comments about her friends, stating they would get what they deserved. She stated that her visitation with her father stopped because of his threatening remarks.

Isabella reported that when her father found out that she was cutting herself, and about her relationship with a seventeen year old boy, he called CPS.

Isabella explained that a worker from CPS then came to her house to report her cutting to her mother.

Isabella testified that she explained to her mother that she was cutting herself because of her father's actions. She then told her mother that she was sleeping in the same bed with her father and he would rub her back a lot. She also told her mother that he would lay his head on her breasts and slap her butt. Isabella stated that the next day her mother took her to the hospital for an evaluation regarding the cutting. Upon returning home, she told her mother about her father rubbing lotion around her vagina (down there.) She explained that there were times where he would get extremely close to her vagina and she would push him away. She stated that she never told him to stop, as pushing away was enough to have it stop. Isabella stated that this action by her father made her feel very uncomfortable. Isabella indicated that this happened between the time she was six and twelve years old. She testified that she did not tell her mother or anyone else until the summer of 2009, explaining that she was scared to tell her mother and that she felt uncomfortable talking to her about these things.

Isabella described the living arrangements at her father's home. She indicated that early [*5]on, there were only two bedrooms so she and her brother, Joseph, shared a bedroom, while her father had his own room. Later on, Mr. V. rented another bedroom so that she and Joseph and her father each had their own room.

Isabella indicated that despite having her own room, she slept in her father's bed every time she was at his house, describing it as a full sized bed. Isabella testified that she never complained about sleeping in her father's bed, because she was afraid he would hit her or yell at her. She admitted that while she was afraid of her father's reaction, it was true that he had never hit her before.

She did state that she had privacy when getting dressed or undressed and that her father would get undressed in front of her, but only to his underwear.

Isabella was unable to be specific as to date or time when anything happened with her father. She did state that the rubbing with the lotion happened about five times. In response to the Court's question as to how many times the things happened with the lotion, Isabella responded, "That was like during winter time because he would, you know, like he would go from my stomach and from there he'd go under. So within those months, like winter."

Court: Can you give me an estimation of how many times it happened?

Isabella: "Maybe about five."

Transcript, June 11, 2010, page 69, lines 5 through 12.

Regarding alcohol, Isabella stated that she always saw her father drinking when she was very young. She also stated that he drank every weekend and she would see bottles of Coronas. She recalled that he would become very affectionate with her when he was drinking and would hug and kiss her and try and open his mouth. Again, she said this made her feel very uncomfortable and she would run away from him, but never told him to stop. Isabella also indicated that she never told her mother that her father was drinking.

The caseworker, Tracy Peckham, also testified for the Presentment Agency. She indicated that she received this case on July 7, 2009, and met with Isabella, her mother and stepfather.

Ms. Peckham testified that she received the report from the State Central Registry, which contained allegations that the father touched the daughter's vagina, came into the child's room while she was naked, gave the child alcohol when she was eight years old, and that the aunt watched pornography in the child's presence.

While interviewing Isabella, Ms. Peckham testified that Isabella told her that while she was in bed at night in her pajamas, her father would come into her room and rub lotion on her body. Isabella denied that her father ever touched her private area, but would rub lotion just above her private area.

Ms. Peckham also testified that when she took a shower at her father's home and walked from the bathroom to the bedroom in her towel, her father would whistle at her. Isabella also told Ms. Peckham that when she would walk past her father, he would hit her on the butt. Isabella added that she did not know if he was joking or serious, but it made her feel uncomfortable.

Isabella also told Ms. Peckham that her father would drink Coronas to the point of intoxication and try to kiss her with an open mouth. She also stated that there were times where her father would hug her and rest his head on her chest. She said all theses things made her [*6]uncomfortable. Isabella told Ms. Peckham that she felt uncomfortable around her father, but never asked him to stop doing these things.

Isabella told Tracy Peckham that there was one incident where her brother touched her on her chest. This happened when family was visiting and it was necessary for them to share a bed. She indicated that she did not know however, if this was deliberate or not. This made her feel uncomfortable. Tracy Peckham found Isabella to be credible.

Ms. Peckham testified that she never spoke with Mr. V. when conducting her investigations. Nor did she speak with Isabella regarding her text messages with her father or her father's disapproval of her involvement with a seventeen year old boy.

Joseph V. testified on behalf of his father, the respondent. He was twenty-one years old at the time of his testimony, eight years older than Isabella.

He was very supportive of his father, with whom he lives, describing him in a very favorable light. He described his mother as being physically and verbally abusive, indicating that he moved in with his father because of the abuse in his mother's home. He stated that his mother once threw an object, hitting his father and explained that she would force him to make up lies about his father.

Joseph reported that he no longer had any contact with his mother or his sister. He stated that he last spoke with Isabella in May, 2009, explaining that his mother refused to let Isabella speak with him, taking away her cell phone. He also resented that his mother made these false allegations against his father.

Joseph described his relationship with his sister prior to May, 2009, as being a good one. He testified that he, his sister and his father each had their own rooms at his father's house and they all slept separately. He denied ever having observed his father rub lotion on Isabella, nor did he ever witness his father kiss or hug Isabella inappropriately, whistle at her or slap her butt. Joseph denied having touched Isabella inappropriately, acknowledging that Isabella made allegations against him, which were later dropped.

Joseph also testified that there is no alcohol in his father's home and his father only drinks a beer or a glass of wine on special occasions.

He testified that in May, 2008, Isabella told him that she wanted to come live with their dad. Joseph also stated that in May, 2009, Isabella changed the way she dressed, wearing a lot of make-up and short, tight skirts. He also stated that she was using Facebook, MySpace and Justin.TV websites. He stated he saw a picture of a penis on her Justin.TV profile and told his father.

He testified that they all had a great relationship until May, 2009, when Isabella made these allegations. Since then, he reported, they have not spent any time together.

Jose V. testified in his own behalf.

He described a tumultuous relationship with his ex-wife, Sharon A., and confirmed the domestic violence and criminal history, as previously set forth herein.

Mr. V. indicated that he does not keep alcohol in his home and only drinks a glass of wine or beer on special occasions.

Mr. V. testified that he and Isabella had a very good relationship. She would come to his home every other weekend and one day during the week. He stated that he, Isabella and Joseph each had their own room, where each of them slept. He denied all the allegations made by [*7]Isabella.

He reported that when not together, he and Isabella spoke regularly and texted with each other most nights.

Mr. V. testified that Isabella texted him on May 7, 2008, at 11:45 p.m., begging him to allow her to live with him. He explained that Isabella told him through text messages, that her mother was having anxiety attacks and going to the hospital, taking Isabella with her late at night.

Mr. V. went to Isabella's school the following day and confirmed that Isabella was falling asleep in class and her grades were suffering. He reported that he filed for custody of Isabella in Queens Family Court on the next day, May 9, 2008.

He also indicated that on May 8, 2008, he had not heard from his daughter. He and Joseph went to her home to check on her. When they were denied entry by the mother, he called CPS, who instructed him to call 911. Ms. A. filed for an Order of Protection based on events of that night.

Mr. V. testified that Isabella moved with her mother to Long Beach in February, 2009. He reported that he saw many changes in her from that time until May, 2009. He described her as Goth, wearing dark, tight clothing, heavy make-up and black nail polish.

Mr. V. testified that he last saw his daughter on May 31, 2009. He explained that he had learned from his sister that Isabella, then twelve years old, was dating a seventeen year old boy. He stated that he spoke with Isabella, telling her that this was not appropriate.

Mr. V. testified that a few days after this visit, he was served with an Order of Protection that he not speak with his daughter.

He then looked through his computer. He found what he believed to be troubling material on Isabella's social websites and discovered that Isabella was cutting herself at this time. He called CPS.

Dr. Leonard Gries also testified for the respondent.

He stated that he is a licensed psychologist. He was ordered by Queens Family Court to conduct a psychiatric evaluation and sex abuse assessment of Isabella V.

Dr. Gries testified that he did not find significant evidence of Isabella being sexually abused, but he did find that Isabella felt a strong sense of powerlessness, especially relating to her living arrangements and that she was helpless to do anything about it.

He explained that she had anxiety and was terrified of having to move, as she had become

Dr. Gries stated that Isabella was angry at her father for calling CPS and jeopardizing her living with her mother and for being critical of the person she had become.

Dr. Gries also stated that Isabella acknowledged that she lies and sometimes believes her own lies. As such, Dr. Gries indicated that Isabella has an issue distinguishing between reality and fantasy, reporting that Isabella sometimes is not sure if something happened or did not happen.

Dr. Gries testified that Isabella discussed two incidents of cutting. The first, in 2008, was due to guilt for having made negative remarks about her mother. The second, was when she carved herself, relating to the boy.

Dr. Gries testified that he and Isabella discussed the allegations that she made against her [*8]father. Isabella reported to him that she was uncomfortable when her father applied lotion to her.

He stated that Isabella did acknowledge that there were times when her skin was very dry and itchy, and that from time to time needed to have lotion applied. She told Dr. Gries that when she was with her father, he applied it, and when at her mother's house, she did it herself.

Dr. Gries also testified that Isabella had indicated to him that she could not face her father since making these allegations, that she did not want him to get upset or angry with her, and just wanted him to go away.

He did, however, state that the father's actions were derelict regarding Isabella's right to privacy, her development and her right to space and found that there were indications of inappropriate or insufficient regard for her development by the father, as she was approaching adolescence. Again, he did not find significant evidence that she was sexually abused.

Conclusions of Law

Family Court Act § 1012 (e)(iii) defines "abused child" as a child less than eighteen years of age whose parents or other person legally responsible for his care commits, or allows to be committed an offense against such child defined in Article One Hundred Thirty of the Penal Law.

§ 130.00(3) of the Penal Law defines sexual contact as any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing.

Family Court Act § 1046 (b)(i) requires that, "any determination that the child is an abused or neglected child must be based on a preponderance of the evidence." In the Matter of Tammie Z., 66 NY 2d1; 494 N.Y.S. 2d 686 (1985).

While hearsay statements are ordinarily not admissible at a fact-finding hearing, a child's out of court statements are admissible in Article 10 Abuse and Neglect Cases. They must, however, be corroborated. In the Matter of Nicole V., 71 NY2d 112, 524 N.Y.S. 2d 19 (1987).

In the instant case, the Presentment Agency offered the child's out of court statement to the caseworker, Tracy Peckham, which must be corroborated. The child also testified during the fact- finding hearing. That statement need not be corroborated, however, the Court must make a determination as to the child's credibility. While the child's in court statement need not be corroborated, it can serve to corroborate her out of court statement. In the Matter of Christina F., 74 NY2d 532, 549 N.Y.S. 2d 643 (1989).

After hearing all the witnesses, observing their demeanor and assessing their credibility, the

Court finds that the Presentment Agency has failed to establish that the Respondent, Jose V., sexually abused his daughter, Isabella.

The Court finds that Isabella's claim of sexual abuse by her father is suspect.

It is clear to this Court that Isabella's disclosures were motivated by her strong desire to remain on Long Island with her new friends. The Court finds that Isabella distorted her father's behaviors and used them to manipulate her living arrangement. Isabella has a history of lying and difficulty distinguishing between reality and fantasy.

The Court finds that Isabella's testimony was inconsistent and not wholly credible, finding that she embellished certain events in her life.

The Court cannot ignore the timing of Isabella's disclosure. Isabella had visitation with [*9]her father every other weekend from the time she was six years old, without incident. Mr. V. and Joseph testified that they shared a good relationship with Isabella. Isabella admitted that she sometimes had fun with her father and brother during her visitation with her father. Although Isabella seemed determined during the fact-finding hearing to deny she had a good relationship with her father, it seems that all went smoothly between them, notwithstanding the dislike that the father and mother had for one another.

It does not ring true that Isabella did not feel she had a good relationship with her father. She acknowledged that she spoke with her father every night when she was not with him, and she requested to live with him, in her text message of May 7, 2008.

Isabella's testimony that her text messages requesting to live with her father were made only because her father had told her previously what to say, is not credible. The text messages do not appear scripted, but appear to be a genuine conversation. Mr. V.'s questioning as to the reason for her wish to live with him, does not seem rehearsed.

Mr. V.'s action in meeting with Isabella's guidance counselor the following day to verify Isabella's claim that she was tired and falling asleep in class due to being kept awake at night by her mother, does not appear staged. It is not disputed that Mr. V. met with the guidance counselor to validate his daughter's claim. Only at this time, after confirming that Isabella was falling asleep at school and dropping in her grades, did he file a petition for custody on May 9, 2008. Isabella did not disclose any inappropriate actions by her father at this time. Quite the contrary, she sought to live with him. At this time also, Mr. V. called CPS and an investigation was conducted. Isabella did not disclose any inappropriate actions by her father to the CPS worker in 2008. In fact, the custody petition was pending for twelve months, yet Isabella made no disclosure of inappropriate touching by her father.

In February, 2009, Isabella, her mother and stepfather moved from Queens to Long Beach, Long Island. Her life began to change.

Isabella testified that she began making friends and was happy. She indicated that she met

a boy who she liked. He was seventeen years old. She was twelve years old.

In May, 2009, Mr. V. learned of the relationship between his daughter and the

seventeen year old boy. He also did not approve of the way she had begun dressing and on May

31, 2009, he expressed his displeasure to Isabella during their visitation.

Approximately one week later, Mr. V. also found inappropriate material on Isabella's social websites, and learned that Isabella was cutting herself.

This, coupled with Ms. A.'s modification of the Order of Protection against Mr. V., preventing him from speaking with his daughter, caused him to call CPS. A worker met with Isabella and her mother to specifically investigate the cutting. Despite her eventual claim that she was cutting herself because of the actions of her father, Isabella did not disclose any sex abuse allegations at this time to the caseworker.

Isabella did not disclose these sex abuse allegations until approximately one month later. The report was not made to the State Central Registry until July 7, 2009.

It is clear to this Court that Isabella's disclosure was made in an effort to thwart her father's custody application. While Isabella requested her father seek custody of her in May, [*10]2008, her circumstances had significantly changed by May, 2009. Isabella moved with her mother to Long Beach, she had new friends and met a boy, who she seemed quite enamored with.

The evidence is clear that Mr. V. was not supportive of Isabella's new style of dress and was vehemently and appropriately opposed to her having any involvement with a seventeen year old boy.

It then became clear to Isabella, that living with her father would interfere with her new found happiness in Long Beach.

While Isabella claimed that she cut herself as a result of her father's actions, the evidence points elsewhere. It is clear that Isabella cut herself on two occasions. Once in 2008, which she reported to Dr. Gries, was because she was upset that she had said negative things about her mother. The second incident of cutting was in 2009.

While she claimed she cut herself because of what her father did, Isabella reported to Dr. Gries that she carved the date because it was the day she spent with Hector and he kissed her. There is also testimony that Hector was breaking up with her and that she was distraught. Isabella also stated that she did not want to leave Hector and was afraid that would happen if her father gained custody. It is not credible that if she were truly upset over the actions of her father, she would carve a date relating to the boy.

It has also been established that Isabella has a history of lying.

While testifying, Isabella admitted that she lied to her father on at least one occasion, claiming her mother told her to do so. She also admitted to having lied to the school guidance counselor and to the ACS worker about her mother keeping her up late at night. She also admitted to lying to the boy, Hector.

Isabella admitted in her testimony, and to Dr. Gries, that she has lied so often that she herself has come to believe her own lies. While she insists that this time she is telling the truth regarding the actions by her father, the facts as a whole do not support her claim. The act of cutting, as well as the actual cuts, coincide with Isabella's relationship with the seventeen year old boy, Hector.

Isabella explained that she told Hector all of her problems, including that she was cutting herself. She did not tell him she was cutting herself because of inappropriate behavior by her father, but rather that she was cutting herself because of tension in her home. Again, Isabella stated in court that she lied to Hector when she told him that she told him all of her problems.

Isabella also testified that she told Hector that she made thirty cuts to her body because she thought she would never have him. In court, Isabella explained that she had lied to Hector when telling him the cutting was because of him, claiming she only said that to him because she did not want to tell him the truth.

This Court questions Isabella's veracity even when testifying. When confronted by her father's attorney during cross examination, she became hesitant when answering the questions. She seemed to be stalling and eventually responded that she was confused or unable to remember certain events, specifically, relating to texting certain messages.

It is also noteworthy, that Isabella made allegations of sexual abuse against her brother, Joseph. This was investigated and later dropped.

Isabella testified that she slept in her father's bed every weekend and that it was at these times that her father would rub lotion on her. Ms. Peckham testified, however, that Isabella [*11]reported to her that her father would go into her room and rub lotion on her there, because sometimes she got dressed in her room. When confronted with the inconsistency, Isabella claimed during her testimony, that she never told that to the social worker and that the social worker misunderstood.

Adding to Isabella's lack of truthfulness, is the fact that she vacillated regarding some of her allegations.

When describing the touching by her brother, Isabella makes the claim on the one hand, yet states she was not sure if it was accidental or deliberate. When making allegations that her father rubbed lotion on her, Isabella initially stated that he did it fairly often. When questioned on cross examination, she indicated that it happened maybe about five times in total, occurring in the winter months, when her father would say she had dry skin. She acknowledged to Dr. Gries that she did have dry, itchy skin in the winter months. It is also important to note that the initial report to the State Central Registry alleges that Mr. V. touched her vagina, but later the allegation was that he only touched near her vagina. It was also reported in the State Central Registry that the father walked into her room when she was naked, yet when testifying Isabella was clear that she had privacy in her room to dress and undress.

While Isabella stated that she never had panic attacks before making these sexual abuse allegations against her father, she acknowledged that she does suffer from panic attacks since making these allegations.

While Isabella cried when testifying, it appeared that this was due not to the alleged actions by her father, but more likely due to her anguish at accusing her father. She reported to Dr. Gries, that she did not want to face her father after making these allegations.

The Court believes that perhaps Mr. V. did rub lotion on Isabella, but the evidence supports that he did so for a legitimate purpose, not for sexual gratification. "The element of intent to obtain sexual gratification [P.L. § 130.00 (3)], the only element in dispute here, may be inferred from the totality of the circumstances." Matter of Jelani B. And Marlon B. 54 AD3d 1032, 865 N.Y.S. 2d 114 2nd Dept., 2008.

Before this Court can make a finding of sexual abuse, it must be established that the respondent's actions were done for sexual gratification of himself or the victim.

Isabella was clear that Mr. V. never touched her vagina, that she never saw his private parts, and that she had privacy to get dressed and undressed.

Even Isabella acknowledged that she had dry skin in the winter months and needed to apply lotion.

Isabella's additional allegations that Mr. V. whistled at her, slapped her butt, or tried to kiss her with an open mouth when he was intoxicated, are not supported by the evidence. Isabella gives no specific date or time that these things happened. There is no indication that each action happened many times or as isolated incidents.

In light of Isabella's history of lying, her motivation to maintain her living arrangements and her difficulty in distinguishing between fantasy and reality, the Court cannot make a finding of sexual abuse. Again, with regard to these actions, it has not been established that any of these acts, if true, were committed for the sexual gratification of either Mr. V. or Isabella.

That Mr. V. refers to his daughter as sweetie, baby or mami, is not proof of sexual abuse. [*12]Many parents refer to their children by these terms. They are nothing more than a substitution for her name and in no way supports a finding of sexual abuse.

The fact that Mr. V. was convicted of a DWI in 2002, does not establish that he was intoxicated every weekend, nor does it establish that he sexually abused his daughter.

It does appear, however, that Mr. V. has failed to recognize that his daughter is no longer a small child, but is becoming a young adult. It is imperative that he adjust his actions in accordance with her stage of development.

The Court is hopeful that Isabella will resume a relationship with her father. It would serve them both to begin with therapeutic visitation, before moving on to the previous parenting schedule. Based on the foregoing, the Court finds that the Presentment Agency has failed to meet its burden of proving sexual abuse by a preponderance of the evidence.

In view of the above facts and case law, it is;

ORDERED that, the petition by the Nassau County Department of Social Services, against the respondent, Jose V., is hereby dismissed.

THIS CONSTITUTES THE DECISION OF THE COURT.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Dated: January 21, 2011E N T E R:

______________________________

Honorable Ellen R. Greenberg

Family Court Judge