Opinion
13647 Dkt. No. NA-12901/16 NA-12902/16 Case No. 2020-00684
04-22-2021
In the MATTER OF KRYSTAL N. and Another, Children Under Eighteen Years of Age, etc., Juan R., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Steven P. Forbes, Jamaica, for appellant. James E. Johnson, Corporation Counsel, New York (Deborah E. Wassel of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), attorney for the child Krystal N. Leslie S. Lowenstein, Woodmere, attorney for the child James R.
Steven P. Forbes, Jamaica, for appellant.
James E. Johnson, Corporation Counsel, New York (Deborah E. Wassel of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), attorney for the child Krystal N.
Leslie S. Lowenstein, Woodmere, attorney for the child James R.
Acosta, P.J., Renwick, Singh, Moulton, JJ.
Order of fact-finding, Family Court, Bronx County (Gilbert A. Taylor, J.), entered on or about December 19, 2019, which determined, after a hearing, that respondent abused his stepdaughter and derivatively neglected his son, unanimously affirmed, without costs.
The Family Court properly concluded that the child's out-of-court statements were properly corroborated ( Family Ct Act § 1046[a][vi] ; Matter of Nicole V., 71 N.Y.2d 112, 118–119, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ) by the testimony of her brother, the ACS's caseworker, and the 911 tape (see Matter of Samantha F. [Edwin F.], 169 A.D.3d 549, 549–550, 95 N.Y.S.3d 31 [1st Dept. 2019], lv dismissed 33 N.Y.3d 1042, 103 N.Y.S.3d 15, 126 N.E.3d 1055 [2019] ). Moreover, the court's abuse finding was not based on the fact that the child had repeated her allegations to multiple providers, but rather it concluded that it was the consistency, detail, and specificity of the statements over time that enhanced their reliability (see Matter of Naitalya B. [Melissa B.], 150 A.D.3d 441, 52 N.Y.S.3d 366 [1st Dept. 2017] ).
We further conclude that the finding that respondent sexually abused his stepdaughter was sufficient to warrant a finding that his son was derivatively neglected. The evidence showed that respondent sexually abused his stepdaughter while his son was present in the home. This finding evidenced such an impaired level of judgment as to create a substantial risk of harm for any child in respondent's care (see Matter of Alexis W. [Efrain V.], 159 A.D.3d 547, 549, 73 N.Y.S.3d 163 [1st Dept. 2018] ; Matter of Ashley M.V. [Victor V.], 106 A.D.3d 659, 660, 966 N.Y.S.2d 406 [1st Dept. 2013] ).
Contrary to respondent's assertion, the Family Court properly declined to strike the 911 tapes from the record after his acquittal in Criminal Court because those records were not official recordings relating to respondent's arrest or prosecution and thus were not subject to the sealing statute (see Matter of Dockery v. New York City Hous. Auth., 51 A.D.3d 575, 859 N.Y.S.2d 130 [1st Dept. 2008], lv denied 11 N.Y.3d 704, 864 N.Y.S.2d 808, 894 N.E.2d 1199 [2008] ).
Further, respondent failed to show that the Family Court's decision to deny his request to re-cross-examine a witness was an improvident exercise of discretion (see Matter of Andre N., 282 A.D.2d 273, 274, 722 N.Y.S.2d 866 [1st Dept. 2001], lv denied 96 N.Y.2d 717, 730 N.Y.S.2d 790, 756 N.E.2d 78 [2001] ). Neither respondent's motions nor his statements on the record revealed the nature of information he was hoping to illicit from the witness on re-cross-examination. Furthermore, any assertion by respondent that he was prejudiced by the court's refusal to allow him to re-cross-examine the witness fails because the court repeatedly offered to sign a subpoena for respondent to call that witness on his direct case. Finally, respondent stated to the court that he did not wish to further adjourn the case to serve the witness with a subpoena and preferred for the case to end. Respeondent's strategic decision not to seek the witness's testimony, which was not the result of a prohibition by the Family Court, did not constitute a denial of due process (see Matter of Daniel P. [Noheme P.], 179 A.D.3d 436, 438, 116 N.Y.S.3d 234 [1st Dept. 2020] ).