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Shirley v. Jose M.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 26, 2009

IN RE SHIRLEY ALSO KNOWN AS CHERYL C.-M. AND ANOTHER, CHILDREN UNDER THE AGE OF EIGHTEEN YEARS, ETC.,
v.
JOSE M., RESPONDENT-APPELLANT,
THE ADMINISTRATION FOR CHILDREN'S SERVICES PETITIONER-RESPONDENT.

Order of disposition, Family Court, New York County (Susan K. Knipps, J.), entered on or about September 25, 2007, which, after a fact-finding determination that respondent father sexually abused his child Shirley C.-M and derivatively neglected his child Melanie C.-M, released the subject children to the custody of their mother, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Andrias, Nardelli, Buckley, DeGrasse, JJ.

The finding that the father sexually abused one daughter and derivatively neglected another daughter was supported by a preponderance of the evidence (Family Court Act §§ 1012 [e][iii], 1012 [f][i][B], 1046 [b][i]). The daughter's out-of-court statements were corroborated by a child sexual abuse expert, who, after evaluating the child, concluded that she had been abused. Such corroboration included assessing the child's demeanor, intelligence, memory, language, the consistency of her statements, and the child's description and demonstration of the father's actions (see In re Pearl M., 44 AD3d 348, 349 [2007]).

The expert also ruled out two rival explanations for the daughter's claim of abuse, that she was coached, prompted or prepped to provide her statements, and that she invented the claim on her own as a means of removing her father from her house. No basis exists to disturb Family Court's findings of credibility (see In re Nasir J., 35 AD3d 299 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090226

© 1992-2009 VersusLaw Inc.



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