Opinion
2015-02384, Docket Nos. N-5562-13, N-5563-13.
04-13-2016
In the Matter of KYLE D. (Anonymous), appellant. Administration for Children's Services, petitioner-appellant; Dwayne D. (Anonymous), respondent. (Proceeding No. 1) In the Matter of Maya D. (Anonymous), appellant. Administration for Children's Services, petitioner-appellant; Dwayne D. (Anonymous), respondent. (Proceeding No. 2).
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler, Claire V. Merkine, and Judith Stern of counsel), attorney for the children, the appellants Kyle D. and Maya D. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Diana Lawless of counsel), for petitioner-appellant. Susan Jacobs, New York, N.Y. (Neha Choudary and Maura Keating of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler, Claire V. Merkine, and Judith Stern of counsel), attorney for the children, the appellants Kyle D. and Maya D.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Diana Lawless of counsel), for petitioner-appellant.
Susan Jacobs, New York, N.Y. (Neha Choudary and Maura Keating of counsel), for respondent.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, and FRANCESCA E. CONNOLLY, JJ.
Appeal from an order of the Family Court, Queens County (Barbara Salinitro, J.), dated March 6, 2015. The order, after a fact-finding hearing and upon a finding that the petitioner failed to establish that the father abused or neglected Maya D. or derivatively neglected Kyle D., dismissed the petitions.
ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the petition is reinstated, it is found that the father abused and neglected Maya D. and derivatively neglected Kyle D., and the matter is remitted to the Family Court, Queens County, for a dispositional hearing and dispositions thereafter before a different Judge.
While the credibility findings of a hearing court are accorded deference (see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 ; Matter of Chanyae S. [Rena W.], 82 A.D.3d 1247, 924 N.Y.S.2d 793 ), we are free to make our own credibility assessments and, where proper, make a finding of abuse or neglect based upon the record before us (see Matter of Nyasia C. [Christine J.-L.], 137 A.D.3d 781, 26 N.Y.S.3d 574 ; Matter of Chanyae S. [Rena W.], 82 A.D.3d 1247, 924 N.Y.S.2d 793 ; Matter of Samuel D.-C., 40 A.D.3d 853, 837 N.Y.S.2d 170 ; Matter of Peter R., 8 A.D.3d 576, 579, 779 N.Y.S.2d 137 ). Contrary to the determination of the Family Court, the testimony of the petitioner's expert witness, who was an expert in the field of child sexual abuse, provided sufficient corroboration to support the reliability of Maya D.'s out-of-court statements regarding her father's sexual abuse of her and, together with the testimony of the petitioner's caseworker and the mother, established the allegations in the petition by a preponderance of the evidence (see Family Ct. Act § 1046 [a] [vi] ; Matter of Elizabeth G., 255 A.D.2d 1010, 680 N.Y.S.2d 32 ). The allegations of sexual abuse were further corroborated by the consistency of Maya D.'s out-of-court statements and by the fact that Maya D. had age-inappropriate knowledge of sexual matters (see Matter of Kimberly CC. v. Gerry CC., 86 A.D.3d 728, 730, 927 N.Y.S.2d 191 ; Matter of Briana A., 50 A.D.3d 1560, 857 N.Y.S.2d 837 ; Matter of Yorimar K.-M., 309 A.D.2d 1148, 1148–1149, 765 N.Y.S.2d 283 ). Therefore, upon our review of this record, we conclude that the petitioner satisfactorily demonstrated by a preponderance of the evidence that the father abused and neglected Maya D. and derivatively neglected her brother, Kyle D.
In view of our findings of abuse, neglect, and derivative neglect, we remit the matter to the Family Court, Queens County, for a dispositional hearing and dispositions thereafter. Under the particular circumstances of this case, we deem it appropriate to remit the matter to a different Judge for purposes of disposition.