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In re Alyanna C.

Supreme Court of New York, First Department

October 8, 2013

In re Alyanna C., A Child Under Eighteen Years of Age. etc., Administration for Children's Services, Petitioner-Appellant, and Rene B., et al., Respondents-Respondents.

Michael A. Cardozo, Corporation Counsel, New York (Benjamin Welikson of counsel), for appellant.

Andrew J. Baer, New York, for Rene B., respondent. Chadbourne & Parke LLP, New York (Marc B. Roitman of counsel), for Cynthia C., respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the child.

Gonzalez, P.J., Mazzarelli, Andrias, DeGrasse, JJ.

Order, Family Court, New York County (Susan K. Knipps, J.), entered on or about January 8, 2013, which, after a fact-finding hearing, dismissed the petition alleging sexual abuse and neglect of the subject child, unanimously affirmed, without costs.

Petitioner agency failed to demonstrate by a preponderance of the evidence that respondent stepfather sexually abused the child. The child's testimony was inconsistent, vague, and lacking in specific details. It therefore did not meet the required threshold of reliability and cannot provide corroboration for her previous out-of-court statements (see Matter of Jared XX., 276 A.D.2d 980, 981-983 [3d Dept 2000]). Family Court's assessment of witness credibility is entitled to considerable deference, and we see no basis for disturbing the court's rejection of the child's testimony that her stepfather sexually abused her (see Matter of Irene O., 38 N.Y.2d 776 [1975]).

The record also fails to demonstrate that respondents neglected the child (see e.g. Matter of Linda E., 143 A.D.2d 904, 908 [2d Dept 1988]). Although respondents may not have reacted appropriately to every difficulty that arose involving the child, the preponderance of the evidence does not show that they failed to exercise the statutory minimum degree of care (see Family Court Act § 1012[f][i][B]; Nicholson v Scoppetta, 3 N.Y.3d 357, 370 [2004]).


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