Opinion
2017–02437 Docket Nos. N–6192–14, N–6193–14
07-11-2018
In the Matter of KYLE C. (Anonymous), appellant. v. NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, petitioner-respondent; v. Daniel C. (Anonymous), respondent-respondent. (Proceeding No. 1) In the Matter of Ryan C. (Anonymous), appellant. v. Nassau County Department of Social Services, petitioner-respondent; v. Daniel C. (Anonymous), respondent-respondent. (Proceeding No. 2)
Amy L. Colvin, Huntington, NY, attorney for the children, Kyle C. and Ryan C., appellants. Jared A. Kasschau, Mineola, N.Y. (Robert F. Van der Waag of counsel), for petitioner-respondent. Kelton & Teichner, Kew Gardens, N.Y. (Howard R. Teichner of counsel), for respondent-respondent.
Amy L. Colvin, Huntington, NY, attorney for the children, Kyle C. and Ryan C., appellants.
Jared A. Kasschau, Mineola, N.Y. (Robert F. Van der Waag of counsel), for petitioner-respondent.
Kelton & Teichner, Kew Gardens, N.Y. (Howard R. Teichner of counsel), for respondent-respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In two related proceedings pursuant to Family Court Act article 10, the children appeal from an order of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated February 17, 2017. The order, after a fact-finding hearing, and upon a finding that the petitioner failed to establish that the father neglected or abused the children, dismissed the petitions.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner commenced the instant proceedings pursuant to Family Court Act article 10 against the father, alleging that he had neglected and abused the subject children. The charges stemmed from allegations of sexual abuse and excessive corporal punishment initially made by the older child and later repeated by the younger child. After a hearing, the Family Court concluded that the petitioner failed to prove the allegations against the father by a preponderance of the evidence. The children appeal. We affirm.
Pursuant to Family Court Act § 1012(f), a neglected child is one "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent ... to exercise a minimum degree of care" by, inter alia, "unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof" ( Family Court Act § 1012[f][i][B] ). The petitioner has the burden to demonstrate neglect by a preponderance of the evidence (see Family Court Act §§ 1012[f][i][B] ; 1046[b][i]; Nicholson v. Scoppetta , 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; Matter of Amoria S. [Sharon M.M.] , 155 A.D.3d 629, 629–630, 62 N.Y.S.3d 542 ; Matter of Cody W. [Ronald L.] , 148 A.D.3d 914, 915, 49 N.Y.S.3d 509 ; Matter of Agam B. [Janna W.] , 143 A.D.3d 702, 703, 38 N.Y.S.3d 591 ).
A child's out-of-court statements regarding allegations of neglect are admissible in evidence, but are not sufficient to support a finding of neglect unless they are corroborated (see Family Court 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 Amoria S. [Sharon M.M.] , 155 A.D.3d at 630, 62 N.Y.S.3d 542 ; Matter of Cody W. [Ronald L.] , 148 A.D.3d at 915, 49 N.Y.S.3d 509 ; Matter of Jada K.E. [Richard D.E.] , 96 A.D.3d 744, 949 N.Y.S.2d 58 ). The Family Court has "considerable discretion in the first instance to determine if a child's out-of-court statements have been reliably corroborated, and whether the record as a whole supports a finding of abuse and/or neglect" ( Matter of Tristan R. , 63 A.D.3d 1075, 1078, 883 N.Y.S.2d 229 ; see Matter of Amoria S. [Sharon M.M.] , 155 A.D.3d at 630, 62 N.Y.S.3d 542 ; Matter of Cody W. [Ronald L.] , 148 A.D.3d at 915–916, 49 N.Y.S.3d 509 ; Matter of Alexis S. [Edward S.] , 115 A.D.3d 866, 867, 982 N.Y.S.2d 366 ; Matter of Jada K.E. [Richard D.E.] , 96 A.D.3d at 745, 949 N.Y.S.2d 58 ; Matter of Tristan R. , 63 A.D.3d at 1078, 883 N.Y.S.2d 229 ). "[W]here the Family Court is primarily confronted with issues of credibility, its factual findings must be accorded considerable deference on appeal" ( Matter of Jada K.E. [Richard D.E.], 96 A.D.3d at 745, 949 N.Y.S.2d 58 ; see Matter of D.M. [Ali T.], 138 A.D.3d 856, 857, 32 N.Y.S.3d 170 ; Matter of Deatrus Amira D. [Astoria D.] , 136 A.D.3d 900, 901–902, 26 N.Y.S.3d 143 ; Matter of Hayden C. [Tafari C.] , 130 A.D.3d 924, 925, 13 N.Y.S.3d 564 ).
Here, the primary issue facing the Family Court was the credibility of the children's accusations of sexual abuse against the father. The record supports that court's conclusion that the older child's out-of-court statements were not sufficiently corroborated and that the younger child's statements, while supported by his in-court testimony, were not credible. The record further supports the court's determination that the medical evidence did not support the allegations against the father. Similarly, we agree with the court's determination that the petitioner failed to present a prima facie case of neglect based upon excessive corporal punishment (see Matter of Sulayne G. [Sulay J.] , 126 A.D.3d 791, 5 N.Y.S.3d 244 ; Matter of Anastasia L.–D. [Ronald D.] , 113 A.D.3d 685, 687, 978 N.Y.S.2d 347 ).
The children's remaining contentions are without merit.
MASTRO, J.P., AUSTIN, MILLER and CONNOLLY, JJ., concur.