Opinion
2015-04888, 2015-05082, Docket No. N-15065-14.
04-13-2016
In the Matter of D.M. (Anonymous). Suffolk County Department of Social Services, respondent; Ali T. (Anonymous), appellant.
Janessa M. Trotto, Bohemia, N.Y., for appellant. Dennis M. Brown, County Attorney, Central Islip, N.Y. (Frank J. Alberti of counsel), for respondent. Heather A. Fig, Bayport, N.Y., attorney for the child.
Janessa M. Trotto, Bohemia, N.Y., for appellant.
Dennis M. Brown, County Attorney, Central Islip, N.Y. (Frank J. Alberti of counsel), for respondent.
Heather A. Fig, Bayport, N.Y., attorney for the child.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and BETSY BARROS, JJ.
Appeals from (1) a decision of the Family Court, Suffolk County (David Freundlich, J.), dated May 11, 2015, and (2) an order of fact-finding and disposition of that court, also dated May 11, 2015. The order of fact-finding and disposition, after fact-finding and dispositional hearings, found that the father abused the subject child.
ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,
ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.
In September 2014, the subject child, then 10 years old, told a police officer, who was also a school resource officer teaching a course at her school, that her father had been engaging in sexual conduct with her for the past five or six years. Following a hearing, at which a member of the child's household testified that she had witnessed the abuse on one occasion, the Family Court determined that the petitioner established, by a preponderance of the evidence, that the father had abused the child by subjecting her to sexual conduct as defined in article 130 of the Penal Law (see Family Ct. Act § 1012 [e][iii] ). The father appeals.
The petitioner in a child protective proceeding has the burden of proving abuse by a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ; Matter of Victoria P. [Victor P.], 121 A.D.3d 1006, 1006, 994 N.Y.S.2d 409 ; Matter of Alexis S.G. [Shanese B.], 107 A.D.3d 799, 799, 967 N.Y.S.2d 737 ). A child's out-of-court statements may provide the basis for a finding of abuse if the statements are sufficiently corroborated by other evidence tending to support the reliability of the child's statements (see Family Ct. Act § 1046[a][vi] ; Matter of Nicole V., 71 N.Y.2d 112, 123, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Matter of Deatrus Amir D. [Astoria D.], 136 A.D.3d 900, 901, 26 N.Y.S.3d 143 ; Matter of Nicole G. [Louis G.], 105 A.D.3d 956, 956, 962 N.Y.S.2d 705 ). The Family Court has considerable discretion in determining whether a child's out-of-court statements have been sufficiently corroborated (see Matter of Nicole G. [Louis G.], 105 A.D.3d at 956, 962 N.Y.S.2d 705 ), and its findings must be accorded deference on appeal where the issue is primarily one of credibility of the witnesses (see Matter of Deatrus Amir D. [Astoria D.], 136 A.D.3d at 901–902, 25 N.Y.S.3d 307 ; Matter of Jada K.E. [Richard D.E.], 96 A.D.3d 744, 745, 949 N.Y.S.2d 58 ).
Here, the record supports the Family Court's determination that the father abused the child, where the petitioner presented the testimony of an eyewitness to the abuse to corroborate the child's out-of-court statements (see Matter of Deatrus Amir D. [Astoria D.], 136 A.D.3d at 902, 25 N.Y.S.3d 307 ). The court's credibility determinations are supported by the record (see id. ; Matter of Hayden C. [Tafari C.], 130 A.D.3d 924, 926, 13 N.Y.S.3d 564 ).