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In re Sonia C.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 11, 2010

IN RE SONIA C., AND ANOTHER, CHILDREN UNDER THE AGE OF EIGHTEEN YEARS, ETC., AND JUANA F., ET AL., RESPONDENTS-RESPONDENTS,
v.
NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, PETITIONER-APPELLANT.

Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about July 1, 2009, which denied the petition and dismissed the allegations of sexual abuse and neglect against respondents, 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.

Mazzarelli, J.P., Acosta, Renwick, Freedman, JJ.

Although a trial court's findings on credibility should rarely be disturbed, they must still be supported by the record (Matter of Melissa P., 261 AD2d 141, 142 [1999], lv denied 95 NY2d 762 [2000]; Matter of Dora F., 239 AD2d 228, 230 [1997], lv denied 92 NY2d 805 [1998]). Here, the record supports the court's conclusion that sexual abuse was not established in accordance with Family Court Act § 1012(e) by a preponderance of credible evidence (§ 1046[b][i]), since the child's testimony was inconsistent, vague and lacking in specific details, and the testimony of other witnesses did not independently corroborate her allegations. On the other hand, respondent mother's testimony, viewed as a whole, is consistent with that of the other witnesses. Because the court's determination of her credibility was based on observations of her demeanor, which we do not have the benefit of evaluating, we will accord it "the greatest respect" (Matter of Irene O., 38 NY2d 776, 777 [1975]).

Although the court should not have dismissed the neglect allegations without stating on the record the grounds for the dismissal (Family Court Act § 1051[c]), these allegations simply were not supported by credible evidence, and nothing in the record shows that respondents otherwise failed to provide a minimum degree of care (§ 1012[f][i]) or that the children suffered harm as a result thereof.

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

20100211

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