Opinion
2019–00500 Docket No. N–21877–15
02-26-2020
In the MATTER OF TAZYA B. (Anonymous), Appellant Child. Administration for Children's Services, Petitioner-Appellant; v. Curtis B. (Anonymous), Respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Riti P. Singh of counsel), attorney for the child, the appellant child. James E. Johnson, Corporation Counsel, New York, N.Y. (Carolyn Walther, Deborah E. Wassel, and Devin Slack of counsel), for petitioner-appellant. Brooklyn Defender Services, Family Defense Practice, Brooklyn, N.Y. (Amy Mulzer and Chas Budnick of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Riti P. Singh of counsel), attorney for the child, the appellant child.
James E. Johnson, Corporation Counsel, New York, N.Y. (Carolyn Walther, Deborah E. Wassel, and Devin Slack of counsel), for petitioner-appellant.
Brooklyn Defender Services, Family Defense Practice, Brooklyn, N.Y. (Amy Mulzer and Chas Budnick of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 10, the subject child and the petitioner separately appeal from an order of the Family Court, Kings County (Alicea Elloras, J.), dated December 14, 2018. The order, after a fact-finding hearing, and upon a finding that the petitioner failed to establish that the father sexually abused the subject child, dismissed the petition.
ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the petition is reinstated, a finding is made that the father sexually abused the subject child, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing and the issuance of a dispositional order thereafter. "A child's prior out-of-court statements may provide the basis for a finding of abuse, ‘provided that these hearsay statements are corroborated, so as to ensure their reliability’ " ( Matter of Alexis S. [Edward S.] , 115 A.D.3d 866, 866, 982 N.Y.S.2d 366, quoting Matter of Jada K.E. [Richard D.E.] , 96 A.D.3d 744, 744, 949 N.Y.S.2d 58 ; see Family Ct Act § 1046[a][vi] ; Matter of Nicole V. , 71 N.Y.2d 112, 123, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Matter of Nicole G. [Louis G.] , 105 A.D.3d 956, 962 N.Y.S.2d 705 ). "Any other evidence tending to support the reliability of the previous statements ... shall be sufficient corroboration" ( Family Ct Act § 1046[a][vi] ). " ‘The Family Court has considerable discretion in deciding whether a child's out-of-court statements alleging incidents of abuse have been reliably corroborated’ " ( Matter of Alexis S. [Edward S.] , 115 A.D.3d at 867, 982 N.Y.S.2d 366, quoting Matter of Nicole G. [Louis G.] , 105 A.D.3d at 956, 962 N.Y.S.2d 705 ; see Matter of Nicole V. , 71 N.Y.2d at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Matter of Zeeva M. [Abraham M.] , 126 A.D.3d 799, 800, 5 N.Y.S.3d 258 ; Matter of Jada K.E. [Richard D.E.] , 96 A.D.3d at 744, 949 N.Y.S.2d 58 ). Although deference is to be given to the hearing court's determinations as to credibility (see Matter of Andrew B. [Deborah B.] , 73 A.D.3d 1036, 1036, 900 N.Y.S.2d 661 ), where that court's credibility determination is not supported by the record, "this Court is free to make its own credibility assessments and overturn the determination of the hearing court" ( Matter of Serenity S. [Tyesha A.] , 89 A.D.3d 737, 739, 931 N.Y.S.2d 693 ).
Contrary to the Family Court's determination, the testimony of the petitioner's expert witnesses, including the validating expert witness (see Matter of Alexis S. [Edward S.] , 115 A.D.3d at 867, 982 N.Y.S.2d 366 ; Matter of Emani W. [Owana E.] , 107 A.D.3d 815, 816, 966 N.Y.S.2d 527 ), provided sufficient corroboration of the subject child's numerous and consistent out-of-court statements regarding the father's sexual abuse of her, and together with the testimony of the petitioner's caseworker, established by a preponderance of the evidence that the father sexually abused the child (see Family Ct Act § 1046[a][vi] ; Matter of Mayra C. [Adan C.] , 163 A.D.3d 808, 809–810, 81 N.Y.S.3d 488 ; Matter of Kyle D. [Dwayne D.] , 138 A.D.3d 835, 835–836, 29 N.Y.S.3d 540 ). Further, the court failed to give sufficient consideration to the inconsistent and evasive nature of the father's testimony (see Matter of Adelia V. [Braun] , 91 A.D.3d 659, 661, 937 N.Y.S.2d 78 ).
Accordingly, in view of our finding of abuse, we remit the matter to the Family Court, Kings County, for a dispositional hearing and the issuance of a dispositional order thereafter.
BALKIN, J.P., LEVENTHAL, MALTESE and IANNACCI, JJ., concur.