In the Matter of Ashley G. (Anonymous). Administration for Children's Services, petitioner-appellant; Eggar T. (Anonymous), respondent-respondent, et al., respondent. (Proceeding No. 1) In the Matter of Jason T. (Anonymous). Administration for Children's Services, petitioner-appellant; Eggar T. (Anonymous), respondent-respondent, et al., respondent. (Proceeding No. 2) In the Matter of Sharman S. (Anonymous). Administration for Children's Services, petitioner-appellant; Eggar T. (Anonymous), respondent-respondent, et al., respondent. (Proceeding No. 3) In the Matter of Amy G. (Anonymous). Administration for Children's Services, petitioner-appellant; Eggar T. (Anonymous), respondent-respondent, et al., respondent. (Proceeding No. 4) Docket Nos. N-20949-16, N-20950-16, N-20951-16, N-20952-16
D56130
T/hu
Zachary W. Carter, Corporation Counsel, New York, NY (Deborah
A. Brenner and Jessica Miller of counsel), for
petitioner-appellant.
Cheryl
Charles-Duval, Brooklyn, NY, for respondent-respondent.
The
Legal Aid Society, New York, NY (Dawne Mitchell and Marcia
Egger of counsel), attorney for the children.
REINALDO E. RIVERA, J.P. MARK C. DILLON JEFFREY A. COHEN
ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In four
related child neglect proceedings pursuant to Family Court
Act article 10, the petitioner appeals from an order of the
Family Court, Kings County (Erik S. Pitchal, J.), dated
November 9, 2017. The order, after a fact-finding hearing,
and upon a finding that the petitioner failed to establish
that the father neglected the subject children, denied the
petitions and dismissed the proceedings insofar as asserted
against the father.
ORDERED
that the order is affirmed, without costs or disbursements.
In
August 2016, the petitioner commenced these related neglect
proceedings against, among others, the father, alleging that
the father neglected the child Amy G. by, inter alia,
committing an act of sexual abuse upon her on July 20, 2014,
derivatively neglected the children Sharman S., Ashley G.,
and Jason T. based upon the act of sexual abuse committed
upon Amy G., neglected Sharman S. by inflicting excessive
corporal punishment upon him on an unspecified date, and
derivatively neglected the other three children based on the
infliction of excessive corporal punishment upon Sharman S.
After a fact-finding hearing, the Family Court found that the
petitioner failed to establish that the father neglected or
derivatively neglected the children, and denied the petitions
and dismissed the proceedings insofar as asserted against the
father. The petitioner appeals.
In a
child protective proceeding, the petitioner has the burden of
proving neglect by a preponderance of the evidence
(see Family Ct Act § 1046[b][i]). To satisfy
this burden, the petitioner may rely upon prior out-of-court
statements of the subject children, provided that they are
sufficiently corroborated (see Family Ct Act §
1046[a][vi]; Matter of Nicole V., 71 N.Y.2d 112,
117-118; Matter of Michael B. [Samantha B.], 130
A.D.3d 619, 620; Matter of Mateo S. [Robin Marie
Y.], 118 A.D.3d 891, 892). '"Any other evidence
tending to support the reliability of the previous statements
.. . shall be sufficient corroboration'" (Matter
of Zeeva M. [Abraham M.], 126 A.D.3d 799, 800, quoting
Family Ct Act § 1046[a][vi]). "[T]he out-of-court
statements of siblings may properly be used to
cross-corroborate one another" (Matter of Tristan
R., 63 A.D.3d 1075, 1076; see Matter of Arique D.
[Elizabeth A.], 111 A.D.3d 625, 627; Matter of Iouke
H. [Terrence H.], 94 A.D.3d 889, 891). However, in order
for a sibling's out-of-court statements to provide
sufficient corroboration of the out-of-court statements of
another sibling, they must describe similar incidents of
abuse (see Matter of Jeshaun R. [Ean R.], 85 A.D.3d
798, 799) or neglect (see Matter of Arique D. [Elizabeth
A.], 111 A.D.3d at 627), and be independent from and
consistent with the other sibling's out-of-court
statement (see Matter of Michael B. [Samantha B.],
130 A.D.3d at 620). The Family Court has considerable
discretion in deciding whether out-of-court statements made
by children have been reliably corroborated and whether the
record as a whole supports a finding of abuse or neglect
(see Matter of Nicole V., 71 N.Y.2d at 119;
Matter of Alexander M. [Benjamin M.], 88 A.D.3d 794,
795; Matter of Joshua B., 28 A.D.3d 759). Moreover,
where the Family Court is primarily confronted with issues of
credibility, its factual findings must be accorded
considerable deference on appeal (see Matter of Cheryale
B. [Michelle B.], 121 A.D.3d 976, 977; Matter of
Alexis S. [Edward S.], 115 A.D.3d 866; Matter of
Jada K.E. [Richard D.E.], 96 A.D.3d 744).
Here,
where Amy G., Sharman S., and Ashley G. all made out-of-court
statements to a case worker, the Family Court properly
determined that the record as a whole did not support a
finding that the father sexually abused Amy G., used
excessive corporal punishment upon Sharman S., or
derivatively neglected any of the children. The out-of-court
statements of Amy G. regarding the alleged sexual acts and
the out-of-court statements of Sharman S. as to the alleged
excessive corporal punishment were insufficiently
corroborated by other evidence tending to support their
reliability (see Matter of Nicole G. [Louis G.], 105
A.D.3d 956, 956). Specifically, the out-of court statements
of Amy G. and Ashley G. were not sufficient to corroborate
the out-of-court statements of Sharman S. as they did not
provide any detailed description of the alleged excessive
corporal punishment against Sharman S. Further, the
out-of-court statements of Sharman S. and Ashley G., while
generally referring to their observations of Amy G. screaming
and crying, failed to provide any detail as to the alleged
sexual abuse against Amy G. Thus, the out-of-court statements
were insufficient to cross-corroborate each other (see
Matter of Jeshaun R. [Ean R.], 85 A.D.3d
798). In the absence of cross-corroboration of the
out-of-court statements, the petitioner failed to present any
nonhearsay, relevant evidence to reliably corroborate the
out-of-court disclosures (see Matter of Nicole G. [Louis
G.], 105 A.D.3d at 957; Matter of Jada K.E. [Richard
D.E.], 96 A.D.3d at 745; Matter of Jeshaun R. [Ean
R.], 85 A.D.3d at 800; Matter of Linda K., 132
A.D.2d 149, 157).
As the
allegations of neglect and derivative neglect were not
established by a preponderance of the evidence, the Family
Court appropriately denied the petitions and dismissed ...