Opinion
2014-04-9
In the Matter of JADA A. (Anonymous). Administration for Children's Services, respondent; Robert W. (Anonymous), appellant, (Proceeding No. 1) In the Matter of Naziya D. (Anonymous). Administration for Children's Services, respondent; Robert W. (Anonymous), appellant, (Proceeding No. 2).
Cheryl Charles–Duval, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hartand Jane L. Gordon of counsel; Jenna Krueger on the brief), for respondent.
Cheryl Charles–Duval, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hartand Jane L. Gordon of counsel; Jenna Krueger on the brief), for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Susan Cordaro and Barbara H. Dildine of counsel), attorney for the children.
In two related child protective proceedings pursuant to Family Court Act article 10, the maternal stepgrandfather appeals from (1) an order of fact-finding of the Family Court, Kings County (Danoff, J.), dated August 29, 2012, which, after a fact-finding hearing, found that he abused the subject children, and (2) an order of disposition of the same court dated August 30, 2012.
ORDERED that the appeal from the order of disposition is dismissed, without costs or disbursements; and it is further,
ORDERED that the order of fact-finding is affirmed, without costs or disbursements.
The appeal from the order of disposition must be dismissed, as the maternal stepgrandfather is not aggrieved by the order of disposition since it did not address or dispose of any portion of the proceedings commenced against him ( see Family Ct. Act § 1112[a]; Matter of Unique R., 43 A.D.3d 446, 446–447, 841 N.Y.S.2d 121;Matter of Darlene L., 38 A.D.3d 552, 553, 831 N.Y.S.2d 500;Matter of Desiree C., 7 A.D.3d 522, 523, 776 N.Y.S.2d 320).
The Family Court's determination that the maternal stepgrandfather sexually abused the subject children was supported by a preponderance of the evidence ( seeFamily Ct. Act §§ 1012[e], [g]; 1046[b][i]; Matter of Kassandra V. [Sylvia L.], 90 A.D.3d 940, 941, 935 N.Y.S.2d 607). “It is well established that the out-of-court statements of siblings may properly be used to cross-corroborate one another” (Matter of Tristan R., 63 A.D.3d 1075, 1076, 883 N.Y.S.2d 229 [internal quotation marks omitted]; see Matter of Adreanna M. [Kety M.], 95 A.D.3d 1213, 1214, 945 N.Y.S.2d 154;Matter of Madison H., 66 A.D.3d 898, 898, 886 N.Y.S.2d 643;Matter of Candace S., 38 A.D.3d 786, 787, 832 N.Y.S.2d 612). Here, the evidence presented at the fact-finding hearing established that, in May 2011, then–10–year–old Naziya D. and 3–year–old Jada A. made independent and consistent out-of-court statements to several individuals describing similar incidents of sexual abuse by the maternal stepgrandfather. Further, the children's statements were corroborated by the petitioner's progress notes and the mother's testimony as to the children's statements ( see Matter of Charlie S. [Rong S.], 82 A.D.3d 1248, 1249, 920 N.Y.S.2d 187).
Additionally, where, as here, the Family Court is primarily confronted with issues of credibility, its findings must be accorded deference on appeal, as they were supported by the record ( see Matter of Kayla R. [Corey R.], 95 A.D.3d 1021, 1022, 943 N.Y.S.2d 764;Matter of Andrew B. [Deborah B.], 73 A.D.3d 1036, 1036, 900 N.Y.S.2d 661;Matter of Aminat O., 20 A.D.3d 480, 481, 797 N.Y.S.2d 767).
The Family Court, upon a finding of abuse pursuant to Family Court Act § 1012(e), must make a further finding of the specific sex offenses that were committed, as defined in Penal Law article 130 ( see Family Ct. Act § 1051 [e] ). Even if the Family Court fails to make such a finding, this Court can make the finding that the Family Court should have made ( see Matter of New York City Dept. of Social Servs. v. Elena A., 194 A.D.2d 608, 609–610, 599 N.Y.S.2d 66;see also Matter of Sheena D., 27 A.D.3d 1128, 1129, 811 N.Y.S.2d 835;Matter of Amber VV., 22 A.D.3d 967, 968, 802 N.Y.S.2d 786). Accordingly, we find, based on the children's statements and the testimony of the mother, that the maternal stepgrandfather committedoffenses against the children as defined in and prohibited by Penal Law §§ 130.52, 130.55, 130.60, 130.65, and 130.80.
The maternal stepgrandfather's remaining contention is without merit. DICKERSON, J.P., CHAMBERS, AUSTIN and SGROI, JJ., concur.