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In re Anthony G. (Anonymous)

Supreme Court of New York, Second Department

February 8, 2017

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.

          Steven Banks, New York, NY (Tamara A. Steckler and John A. Newberry of counsel), attorney for the children.

          RUTH C. BALKIN, J.P., L. PRISCILLA HALL, HECTOR D. LASALLE, BETSY BARROS, JJ.

          DECISION & ORDER

         Appeal 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.

         ORDERED 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.

         The 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).

         Pursuant 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, 1247).

         Contrary 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).

         The parties' remaining contentions are without merit or need not be reached in light of our determination.

         Accordingly, in view of our findings of abuse and derivative abuse, we remit the matter to the Family Court, Kings County, for a ...


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