Opinion
2012-06-6
In the Matter of JADA K.E. (Anonymous). Administration for Children's Services, appellant; Richard D.E. (Anonymous) III, et al., respondents. (Proceeding No. 1) In the Matter of Yamila E. (Anonymous). Administration for Children's Services, appellant; Richard D.E. (Anonymous) III, et al., respondents. (Proceeding No. 2)
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Susan Paulson of counsel), for appellant. Patricia A. Carrington, Brooklyn, N.Y., for respondent Richard D.E. III.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Susan Paulson of counsel), for appellant. Patricia A. Carrington, Brooklyn, N.Y., for respondent Richard D.E. III.
Deana Balahtsis, New York, N.Y. (Meghan R. Buckwalter of counsel), for respondent Khaldia E.
Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine and Janet Neustaetter of counsel), attorney for the children.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.
In two related child protective proceedings pursuant to Family Court Act article 10, the Administration for Children's Services appeals from an order of the Family Court, Kings County (Weinstein, J.), dated July 22, 2011, which, after a fact-finding hearing, dismissed the petitions.
ORDERED that the order is affirmed, without costs or disbursements.
In a child protective proceeding, the petitioner has the burden of proving abuse or neglect by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i] ). To satisfy this standard, “ ‘Family Court Act § 1046(a)(vi) allows the child's prior out-of-court statements relating to the abuse or neglect to be introduced into evidence, provided that these hearsay statements are corroborated, so as to ensure their reliability’ ” (Matter of Tristan R., 63 A.D.3d 1075, 1076, 883 N.Y.S.2d 229, quoting Matter of Department of Social Servs. v. Waleska M., 195 A.D.2d 507, 509, 600 N.Y.S.2d 464;see Matter of Nicole V., 71 N.Y.2d 112, 123, 524 N.Y.S.2d 19, 518 N.E.2d 914;Matter of Jeshaun R. [Ean R.], 85 A.D.3d 798, 798, 925 N.Y.S.2d 533;Matter of Frank F., 12 A.D.3d 601, 784 N.Y.S.2d 386;Matter of Khadryah H., 295 A.D.2d 607, 744 N.Y.S.2d 206). There is, however, a “threshold of reliability that the evidence must meet” (Matter of Iyonte G. [ Charles J.R.], 82 A.D.3d 765, 918 N.Y.S.2d 519;see Matter of Jeshaun R. [ Ean R.], 85 A.D.3d at 798, 925 N.Y.S.2d 533;Matter of Jaclyn L., 307 A.D.2d 294, 762 N.Y.S.2d 285). The Family Court has “ ‘considerable discretion to decide whether the child's out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated’ ” (Matter of Candace S., 38 A.D.3d 786, 787, 832 N.Y.S.2d 612, quoting Matter of Christina F., 74 N.Y.2d 532, 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294;see Matter of Nicole V., 71 N.Y.2d at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914;Matter of Tristan R., 63 A.D.3d at 1077, 883 N.Y.S.2d 229). Moreover, where the Family Court is primarily confronted with issues of credibility, its factual findings must be accorded considerable deference on appeal ( see Matter of Candace S., 38 A.D.3d 786, 832 N.Y.S.2d 612;Matter of Sylvia J., 23 A.D.3d 560, 804 N.Y.S.2d 783).
Here, with regard to the allegations of abuse and neglect against the father, the Family Court properly found that the out-of-court statement of his daughter, Jada K.E., regarding sexual conduct was not sufficiently corroborated by other evidence tending to support the reliability of that statement. Contrary to the petitioner's contentions, neither the out-of-court statements of the father's other daughter, Yamila E., nor the drawing produced by Jada K.E., constituted reliable corroboration. While out-of-court statements of siblings may be used to cross-corroborate one another ( see Matter of Tristan R., 63 A.D.3d at 1076, 883 N.Y.S.2d 229), Yamila specifically denied any sexual behavior and insisted that Jada K.E. was lying. Moreover, although Jada K.E.'s drawing was arguably a visual representation of her out-of-court statement, it was made at the same time she made her lone accusation of abuse and was made at the request of the detective who was interviewing her. Under these circumstances, the drawing was simply a repetition of the accusation, which did not serve to corroborate her prior account ( see Matter of Nicole V., 71 N.Y.2d at 124, 524 N.Y.S.2d 19, 518 N.E.2d 914;see Matter of Zachariah VV., 262 A.D.2d 719, 720, 691 N.Y.S.2d 631). As there was no other evidence tending to corroborate Jada K.E.'s out-of-court statement, the Family Court properly dismissed so much of the petitions as alleged abuse and neglect by the father ( see Matter of Jeshaun R. [ Ean R.], 85 A.D.3d 798, 925 N.Y.S.2d 533;Matter of Iyonte G. [ Charles J.R.], 82 A.D.3d 765, 918 N.Y.S.2d 519;Matter of Kayla F., 39 A.D.3d 983, 833 N.Y.S.2d 742;Matter of Jaclyn L., 307 A.D.2d 294, 762 N.Y.S.2d 285).
Furthermore, the Family Court properly dismissed so much of the petitions as alleged neglect by the mother. While the mother permitted the father to transport her and the children home from day care one afternoon, in violation of an order of protection, “a violation of an order of protection, standing alone, is insufficient to establish neglect” (Matter of Paige AA. [ Anthony AA.], 85 A.D.3d 1213, 1217, 924 N.Y.S.2d 605;see Matter of Andre G., 64 A.D.3d 913, 915, 882 N.Y.S.2d 749). Under the circumstances here, where an emergency situation was presented and where the father's exposure to the children was minimal, the Family Court correctly determined that the mother did not engage in conduct that impaired or threatened the physical, mental, or emotional well being of the children ( see Matter of Julianne XX., 13 A.D.3d 1031, 1032, 786 N.Y.S.2d 835).
The petitioner's remaining contentions are without merit.