In the Matter of Anthony G. (Anonymous). Administration for Children's Services, appellant; Jose G.-G. (Anonymous), respondent. (Proceeding No. 1) In the Matter of Samantha G. (Anonymous). Administration for Children's Services, appellant; Jose G.-G. (Anonymous), respondent. (Proceeding No. 2) Docket Nos. N-29697-14, N-29698-14
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela
Seider Dolgow and Victoria Scalzo of counsel), for appellant.
Jessica Marcus, Brooklyn, NY, for respondent.
Banks, New York, NY (Tamara A. Steckler and John A. Newberry
of counsel), attorney for the children.
C. BALKIN, J.P., L. PRISCILLA HALL, HECTOR D. LASALLE, BETSY
DECISION & ORDER
by the petitioner from an order of the Family Court, Kings
County (Elizabeth Barnett, J.), dated June 16, 2016. The
order, after a fact-finding hearing, dismissed the petition
alleging that the father abused the child Samantha G. and
dismissed the petition alleging that the father derivatively
abused the child Anthony G.
that the order is reversed, on the law and the facts, without
costs or disbursements, the petitions are reinstated, a
finding is made that the father abused Samantha G. and
derivatively abused Anthony G., and the matter is remitted to
the Family Court, Kings County, for a dispositional hearing
and a disposition thereafter.
petitioner commenced these proceedings pursuant to Family
Court Act article 10 alleging that the father sexually abused
Samantha G. and derivatively abused Anthony G. After a
fact-finding hearing, the Family Court dismissed the
petitions on the ground that Samantha G.'s out-of-court
statements were not sufficiently corroborated pursuant to
Family Court Act § 1046(a)(vi).
to Family Court Act § 1012(e)(iii), an abused child is
"a child less than eighteen years of age whose parent...
commits, or allows to be committed an offense against such
child defined in article one hundred thirty of the penal
law." A finding of abuse must be supported by a
preponderance of the evidence (see Family Ct Act
§ 1046[b][i]; Matter of Nicole V., 71 N.Y.2d
112, 117). A child's out-of-court statements may provide
the basis for a finding of abuse if the statements are
sufficiently corroborated by other evidence tending to
support the reliability of the child's statements
(see Family Ct Act § 1046[a][vi]; Matter of
D.M. [Ali T.], 138 A.D.3d 856, 857; Matter of
Deatrus Amir D. [Astoria D.], 136 A.D.3d 900, 901).
"The rule requiring corroboration is flexible, and any
other evidence tending to support the reliability of the
child's statements may be sufficient corroboration"
(Matter of Christopher L., 19 A.D.3d 597, 597;
see Matter of Nicole V., 71 N.Y.2d at 124;
Matter of Nah-ki B. [Nakia B.], 143 A.D.3d 703,
706). While the credibility findings of a hearing court are
accorded deference, this Court is free to make its own
credibility assessments and, where proper, make a finding of
abuse or neglect based upon the record (see Matter of
Nyasia C. [Christine J.-L.], 137 A.D.3d 781, 782;
Matter of Chanyae S. [Rena W.], 82 A.D.3d 1247,
to the Family Court's determination, the evidence that
the father pleaded guilty in a criminal proceeding to
endangering the welfare of a child provided sufficient
corroboration to support the reliability of Samantha G.'s
out-of-court statements regarding the father's sexual
abuse of her (see Matter of Monique M.[Georgette
S.], 110 A.D.3d 814, 815; Matter of Joshua
UU.[Jessica XX.-Eugene LL.], 81 A.D.3d 1096, 1098).
Together with the testimony of the petitioner's
caseworker and the mother, this evidence established the
allegations of sexual abuse by a preponderance of the
evidence (see Matter of Kyle D. [Dwayne D.], 138
A.D.3d 835, 835-836; Matter of Charlie S. [Rong S.],
82 A.D.3d 1248, 1249). Moreover, it is appropriate to draw a
negative inference against the father for his failure to
testify at the fact-finding hearing (see Matter of Nah-ki
B. [Nakia B.], 143 A.D.3d at 706; Matter of Gabriel
W. [Steven C.], 130 A.D.3d 742, 743). The father's
sexual abuse of Samantha G. supports a finding that he
derivatively abused the child Anthony G., since his conduct
demonstrated a fundamental defect in his understanding of the
duties of parenthood so as to create a substantial risk of
harm to any child in his care (see Matter of Andrea V.
[James A.], 128 A.D.3d 1077, 1079; Matter of Ebony
S.[Earlind G.], 123 A.D.3d 1136, 1137; Matter of
Michael U. [Marcus U], 110 A.D.3d 821, 822).
parties' remaining contentions are without merit or need
not be reached in light of our determination.
in view of our findings of abuse and derivative abuse, we
remit the matter to the Family Court, Kings County, for a