Opinion
2014-03811, 2014-03815, 2014-03816, 2014-03817 (Docket Nos. N-17209-12, N-17210-12)
07-01-2015
In the Matter of MICHAEL B. (Anonymous). Administration for Children's Services, respondent; Samantha B. (Anonymous), appellant. (Proceeding No. 1). In the Matter of Lucas B. (Anonymous). Administration for Children's Services, respondent; Samantha B. (Anonymous), appellant. (Proceeding No. 2).
Rhonda R. Weir, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Ellen Ravitch of counsel), for respondent. Lesley J. Lanoix, Jamaica, N.Y., attorney for the child Lucas B.
Rhonda R. Weir, Brooklyn, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Ellen Ravitch of counsel), for respondent.
Lesley J. Lanoix, Jamaica, N.Y., attorney for the child Lucas B.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and BETSY BARROS, JJ.
Opinion Appeals from two orders of fact-finding of the Family Court, Queens County (John M. Hunt, J.) (one as to each child), both dated April 30, 2013, and two orders of disposition of that court (Marybeth S. Richroath, J.) (one as to each child), both dated March 11, 2014. The orders of fact-finding, insofar as appealed from, after a hearing, found that the mother neglected the child Michael B. and abused the child Lucas B. The orders of disposition, among other things, placed Michael B. in the custody of the Commissioner of Social Services of the City of New York until the conclusion of the next permanency hearing, which was to commence on June 10, 2014, and released Lucas B. to the mother's custody, under the supervision of the Administration for Children's Services for a period of nine months.
ORDERED that the appeals from the orders of fact-finding are dismissed, without costs or disbursements, as the orders of fact-finding were superseded by the orders of disposition, and are brought up for review on the appeals from the orders of disposition; and it is further,
ORDERED that the appeal from so much of the order of disposition as released Lucas B. to the mother's custody, under the supervision of the Administration for Children's Services for a period of nine months, is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the appeal from so much of the order of disposition as placed Michael B. in the custody of the Commissioner of Social Services of the City of New York until the conclusion of the next permanency hearing, which was to commence on June 10, 2014, is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the orders of disposition are affirmed insofar as reviewed, without costs or disbursements.
The appeal from so much of the order of disposition as released Lucas B. to the mother's custody, under the supervision of the Administration for Children's Services for a period of nine months, must be dismissed as academic, as that portion of the order has already expired (see Matter of Linda F. [Jose F.], 119 A.D.3d 944, 945, 989 N.Y.S.2d 864 ; Matter of Joshua P. [David J.], 111 A.D.3d 836, 837, 975 N.Y.S.2d 440 ). For the same reason, the appeal from so much of the order of disposition as placed Michael B. in the custody of the Commissioner of Social Services of the City of New York until the conclusion of the next permanency hearing, which was to commence on June 10, 2014, must be dismissed as academic. However, since an adjudication of abuse or neglect “constitutes a permanent and significant stigma that might indirectly affect the appellant's status in future proceedings,” the appeals from so much of the orders of disposition as bring up for review the findings of abuse and neglect have not been rendered academic (Matter of Joshua P. [David J.], 111 A.D.3d at 837, 975 N.Y.S.2d 440 [internal quotation marks omitted]; Matter of Dariana K.C. [Katherine M.], 99 A.D.3d at 900, 952 N.Y.S.2d 589 ).
In a child protective proceeding, the petitioner has the burden of proving abuse or 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 properly corroborated (see Family Ct. Act § 1046[a][vi] ; Matter of Nicole V., 71 N.Y.2d 112, 117–118, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Matter of Mateo S. [Robin Marie Y.], 118 A.D.3d 891, 892, 987 N.Y.S.2d 616 ). “[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, 1076–1077, 883 N.Y.S.2d 229 ; see Matter of Arique D. [Elizabeth A.], 111 A.D.3d 625, 627, 975 N.Y.S.2d 82 ; Matter of Iouke H. [Terrence H.], 94 A.D.3d 889, 891, 941 N.Y.S.2d 851 ). 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, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Matter of Alexander M. [Benjamin M.], 88 A.D.3d 794, 795, 930 N.Y.S.2d 893 ; Matter of Joshua B., 28 A.D.3d 759, 814 N.Y.S.2d 210 ). 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, 995 N.Y.S.2d 135 ; Matter of Alexis S. [Edward S.], 115 A.D.3d 866, 982 N.Y.S.2d 366 ; Matter of Jada K.E. [Richard D.E.], 96 A.D.3d 744, 949 N.Y.S.2d 58 ).
Here, a preponderance of the evidence supported the Family Court's determination that the mother abused Lucas B. by failing to protect him from being sexually abused by his older brother Michael B., and neglected Michael B. by failing to exercise a minimum degree of care in providing him with proper supervision and guardianship (see Family Ct. Act §§ 1012[e] [iii], 1012[f][i] ; Matter of Dylan G. [Victor M.], 119 A.D.3d 786, 787, 989 N.Y.S.2d 321 ; Matter of Cory S. [Terry W.], 70 A.D.3d 1321, 1322, 897 N.Y.S.2d 322 ; Matter of Patricia B., 61 A.D.3d 861, 862, 877 N.Y.S.2d 219 ; Matter of Ivette R., 282 A.D.2d 751, 725 N.Y.S.2d 53 ; Matter of Katrina W., 171 A.D.2d 250, 575 N.Y.S.2d 705 ). The evidence presented at the fact-finding hearing established that, in July and August 2012, then–13–year–old Michael B. and his younger brother, then–7–year–old Lucas B., made independent and consistent out-of-court statements to several individuals describing three separate incidents when Michael B. sexually abused Lucas B. (see Matter of Jada A. [Robert W.], 116 A.D.3d 769, 982 N.Y.S.2d 917 ; Matter of Tristan R., 63 A.D.3d 1075, 883 N.Y.S.2d 229 ; Matter of Department of Social Servs. v. Waleska M., 195 A.D.2d 507, 600 N.Y.S.2d 464 ). Although the mother denied that she had any knowledge of abuse that occurred prior to July 9, 2012, the court's determination that she lacked credibility is entitled to deference and is fully supported by the record (see Matter of Sarah W. [Barbara G.F.], 122 A.D.3d 931, 997 N.Y.S.2d 164 ; Matter of Cheryale B. [Michelle B.], 121 A.D.3d at 977, 995 N.Y.S.2d 135 ; Matter of Rhiannon B., 237 A.D.2d 935, 654 N.Y.S.2d 537 ). Moreover, although the mother separated the subject children by arranging for Lucas B. to reside with the maternal aunt on July 9, 2012, and sought treatment for Michael B. concerning his sexually abusive conduct on July 10, 2012, the evidence also demonstrated that the mother failed to take any steps to disclose the abuse or seek treatment for Michael B. prior to that time (see Matter of Kyanna T. [Winston R.], 99 A.D.3d 1011, 1013, 953 N.Y.S.2d 121 ; Matter of Brian P. [April C.], 89 A.D.3d 1530, 933 N.Y.S.2d 792 ; Matter of Aliciya R., 56 A.D.3d 784, 869 N.Y.S.2d 140 ).