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In re Emani W. (Anonymous)

Supreme Court of New York, Second Department

June 12, 2013

In the Matter of Emani W. (Anonymous). Administration for Children's Services, petitioner- respondent; and Owana E. (Anonymous), appellant, et al., respondent. Docket No. N-7145-09

Alan Smilowitz, West Hempstead, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Victoria Scalzo of counsel), for respondent.

Steven Banks, New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), attorney for the child.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, SYLVIA HINDS-RADIX, JJ.

DECISION & ORDER

In a child protective proceeding pursuant to Family Court Act article 10, Owana E. appeals (1) from a fact-finding order of the Family Court, Kings County (Beckoff, J.), dated January 3, 2012, which, after a hearing, found that he sexually abused the subject child, and (2), as limited by his brief, from so much of an order of disposition of the same court dated February 6, 2012, as, upon the fact-finding order, and after a dispositional hearing, directed him to complete a sex offender program.

ORDERED that the appeal from the fact-finding order is dismissed, without costs or disbursements, as the fact-finding order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,

ORDERED that the order of disposition is affirmed insofar as appealed from, without costs or disbursements.

The appellant, the boyfriend of the subject child's mother, contends that he was not a "[p]erson legally responsible" for the care of the child pursuant to Family Court Act § 1012(g). The appellant's contention is without merit as, under the circumstances, he met the statutory definition of a person legally responsible for the care of the subject child (see Family Ct Act § 1012[g]; Matter of Yolanda D., 88 N.Y.2d 790, 797; Matter of Alfredo T., 61 A.D.3d 690; Matter of Lillian C., 8 A.D.3d 270, 271; Matter of Mary Alice V., 222 A.D.2d at 595).

At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected (see Family Ct Act § 1046[b][i]). A child's out-of-court statements may form the basis for a finding of abuse or neglect if they are sufficiently corroborated by other evidence tending to support their reliability (see Family Ct Act § 1046[a][vi]; Matter of Nicole V., 71 N.Y.2d 112, 123; Matter of Amber C. [ Miguel C. ], 104 A.D.3d 845; Matter of Alexander M. [ Benjamin M. ], 88 A.D.3d 794). The Family Court has considerable discretion in deciding whether a child's out-of-court statements describing incidents of abuse or neglect have been reliably corroborated (see Matter of Christina F., 74 N.Y.2d 532, 536; Matter of Nicole V., 71 N.Y.2d at 119; Matter of Amber C. [ Miguel C. ], 104 A.D.3d at 846; Matter of Kassandra V. [ Sylvia L. ], 90 A.D.3d 940, 941).

Contrary to the appellant's contention, the Family Court's determination that he sexually abused the subject child is supported by a preponderance of the evidence. The subject child's out-of-court statement regarding the acts of sexual abuse upon her was corroborated by an expert in clinical and forensic psychology, with a specialization in child abuse, who evaluated the subject child and concluded that she exhibited behavior indicative of sexual abuse (see Matter of Nicole V., 71 N.Y.2d at 120-122; Matter of Amber C. [ Miguel C. ], 104 A.D.3d at 846; Matter of Kassandra V. [ Sylvia L. ] , 90 A.D.3d at 941; Matter of Andrew W. [ Randolph A.W. ], 83 A.D.3d 727; Matter of Amber B., 39 A.D.3d 743).

The appellant's remaining contention is without merit.

DILLON, J.P., ANGIOLILLO, CHAMBERS and HINDS-RADIX, JJ., concur.


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