Opinion
03-02-2016
In the Matter of NYASIA C. (Anonymous). Administration for Children's Services, petitioner-appellant; Christine J.-L. (Anonymous), et al., respondents-respondents. (Proceeding No. 1) In the Matter of Jaylen G. (Anonymous). Administration for Children's Services, petitioner-appellant; Eddy G. (Anonymous), respondent-respondent. (Proceeding No. 2).
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Diana Lawless of counsel), for petitioner-appellant. David Laniado, Cedarhurst, N.Y., for respondent-respondent Eddy G. Rebecca Fort, Brooklyn, N.Y., for respondent-respondent Christine J.-L. Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), attorney for the children.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Diana Lawless of counsel), for petitioner-appellant.
David Laniado, Cedarhurst, N.Y., for respondent-respondent Eddy G.
Rebecca Fort, Brooklyn, N.Y., for respondent-respondent Christine J.-L.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), attorney for the children.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Appeal from an order of the Family Court, Kings County (Robert D. Mulroy, J.), dated January 13, 2015. The order, after a fact-finding hearing, dismissed the petition alleging that the child Nyasia C. was abused by the respondent Eddy G. and neglected by the respondent Christine J.-L., and dismissed the petition alleging that the child Jaylen G. was derivatively abused by the respondent Eddy G.
ORDERED that on the Court's own motion, the notice of appeal from a decision dated January 13, 2015, is deemed to be a notice of appeal from the order dated January 13, 2015 (see CPLR 5512[a] ); and it is further,
ORDERED that the order is modified, on the facts, by deleting the provision thereof dismissing the petition in Proceeding No. 1 insofar as asserted against the respondent Eddy G. and the petition in Proceeding No. 2, and substituting therefore a provision finding that the respondent Eddy G. abused the child Nyasia C. and derivatively abused the child Jaylen G.; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing and dispositions thereafter on the petition in Proceeding No. 1 insofar as asserted against the respondent Eddy G. and the petition in Proceeding No. 2.
The petitioner commenced two related child protective proceedings pursuant to Family Court Act article 10, alleging that the respondent Eddy G. sexually abused the then four-year-old child Nyasia C. and derivatively abused his son, the child Jaylen G. The petitioner further alleged that the respondent Christine J.-L., Nyasia C.'s mother, neglected Nyasia C. by failing to take the child to counseling and failing to administer anti-HIV medication to the child after the discovery of the alleged sexual abuse. Following a fact-finding hearing, the Family Court found that the petitioner failed to prove that Eddy G. abused Nyasia C. and derivatively abused Jaylen G. and dismissed the petitions. The petitioner appeals.
Contrary to the Family Court's determination, the petitioner met its burden of establishing, by a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ), that Eddy G. abused Nyasia C. and derivatively abused Jaylen G. (see Family Ct. Act § 1012[e] ). A child's out-of-court statements may form the basis for a finding of abuse if they 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 Adreanna M. [Kety M.], 95 A.D.3d 1213, 1214, 945 N.Y.S.2d 154 ; Matter of Frank F., 12 A.D.3d 601, 601, 784 N.Y.S.2d 386 ). In the present case, the testimony of Christine J.-L. regarding her observations of Eddy G. and Nyasia C. in bed together was sufficient to corroborate the child's statements regarding the acts of abuse (see generally Matter of Ishaq B. [Lea B.], 121 A.D.3d 889, 890, 994 N.Y.S.2d 405 ; Matter of Oluwashola P. [Emma T.], 95 A.D.3d 778, 945 N.Y.S.2d 290 ).
Moreover, while the Family Court's credibility findings are accorded deference on appeal (see Matter of Michael B. [Samantha B.], 130 A.D.3d 619, 620–621, 13 N.Y.S.3d 196 ; Matter of Mateo S. [Robin Marie Y.], 118 A.D.3d 891, 893, 987 N.Y.S.2d 616 ), this Court is free to make its own credibility assessments and to enter a finding of abuse where it is supported by the record (see generally Matter of Arthur G. [Tiffany M.], 112 A.D.3d 925, 925–926, 978 N.Y.S.2d 286 ; Matter of Serenity S. [Tyesha A.], 89 A.D.3d 737, 738–739, 931 N.Y.S.2d 693 ; Matter of Chanyae S. [Rena W.], 82 A.D.3d 1247, 924 N.Y.S.2d 793 ; Matter of Tristan R., 63 A.D.3d 1075, 1077, 883 N.Y.S.2d 229 ). Contrary to the Family Court's determination, the inconsistencies in Christine J.-L.'s accounts of her observations did not render her testimony unworthy of belief. Accordingly, we determine that the evidence adduced at the hearing established that Eddy G. abused Nyasia C. and derivatively abused Jaylen G., and we remit the matter to the Family Court for a dispositional hearing and dispositions thereafter on the petition in Proceeding No. 1 insofar as asserted against him and the petition in Proceeding No. 2. However, the Family Court properly dismissed so much of the petition in Proceeding No. 1 as alleged that Christine J.-L. neglected Nyasia C. The hearing evidence did not establish, by a preponderance of the evidence, that Christine J.-L. failed to provide the child with adequate medical care so as to impair the child's physical, mental, or emotional condition or place the child in imminent danger of such impairment (see Matter of Ariel P. [Lisa W.], 102 A.D.3d 795, 795–796, 957 N.Y.S.2d 736 ; Matter of Terrence P., 38 A.D.3d 254, 256–257, 831 N.Y.S.2d 384 ).