Opinion
2015-06-17
In the Matter of GERALD W. (Anonymous), Jr. Administration for Children's Services, appellant; Anne R. (Anonymous), respondent. (Proceeding No. 1) In the Matter of Anthony W. (Anonymous). Administration for Children's Services, appellant; Anne R. (Anonymous), respondent. (Proceeding No. 2) In the Matter of Sally W. (Anonymous). Administration for Children's Services, appellant; Anne R. (Anonymous), respondent. (Proceeding No. 3).
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Diana Lawless of counsel), for appellant. Eileen Choi and Lauren Shapiro, Brooklyn, N.Y., for respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Diana Lawless of counsel), for appellant. Eileen Choi and Lauren Shapiro, Brooklyn, N.Y., for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler, Judith Waksberg, and Patricia Colella of counsel), attorney for the child Gerald W., Jr.
Joseph H. Nivin, Jamaica, N.Y., attorney for the children Anthony W. and Sally W.
, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
Appeal from an order of the Family Court, Kings County (Daniel Turbow, J.), dated November 25, 2014. The order, after a hearing, dismissed the petitions alleging that the subject children were abused and neglected.
ORDERED that the order is affirmed, without costs or disbursements.
The Family Court did not err in dismissing the petitions. The Administration for Children's Services (hereinafter the agency) acknowledged at a hearing that it failed to prove by a preponderance of the evidence that the subject children were abused. The agency also failed to prove by a preponderance of the evidence that the subject children were neglected ( seeFamily Ct. Act § 1046[b][i]; Matter of Nialani T. [Elizabeth B.], 125 A.D.3d 672, 2 N.Y.S.3d 581; Matter of Alexis S.G. [Shanese B.], 107 A.D.3d 799, 967 N.Y.S.2d 737).
A child's prior out-of-court statements may provide the basis for a finding of abuse or neglect, provided that these hearsay statements are corroborated so as to ensure their reliability ( see Matter of Zeeva M. [Abraham M.], 126 A.D.3d 799, 5 N.Y.S.3d 258; Matter of David M. [Sonia M.-C.], 119 A.D.3d 800, 989 N.Y.S.2d 511; Matter of Jada K.E. [Richard D.E.], 96 A.D.3d 744, 949 N.Y.S.2d 58). Any other evidence tending to support the reliability of the child's previous statements shall be sufficient corroboration ( seeFamily Ct. Act § 1046[a][vi]; Matter of Nicole V., 71 N.Y.2d 112, 124, 524 N.Y.S.2d 19, 518 N.E.2d 914; Matter of Zeeva M. [Abraham M.], 126 A.D.3d at 799, 5 N.Y.S.3d 258; Matter of David M. [Sonia M.-C.], 119 A.D.3d at 800, 989 N.Y.S.2d 511; Matter of Alexis S. [Edward S.], 115 A.D.3d 866, 982 N.Y.S.2d 366). There is a threshold of reliability that the evidence must meet ( see Matter of Jada K.E. [Richard D.E.], 96 A.D.3d at 744, 949 N.Y.S.2d 58; Matter of Iyonte G. [Charles J.R.], 82 A.D.3d 765, 918 N.Y.S.2d 519). The Family Court has considerable discretion to decide whether the child's out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated ( see Matter of Zeeva M. [Abraham M.], 126 A.D.3d at 800, 5 N.Y.S.3d 258; Matter of David M. [Sonia M.-C.], 119 A.D.3d at 800, 989 N.Y.S.2d 511; Matter of Jada K.E. [Richard D.E.], 96 A.D.3d at 744, 949 N.Y.S.2d 58). Here, the Family Court did not improvidently exercise its discretion in determining that the statements of the subject child Anthony W. were insufficient to corroborate the statements of the subject child Sally W. as to the alleged sexual abuse perpetrated upon her.
Furthermore, the agency failed to establish that the mother knew or should reasonably have known that Sally W. was in imminent danger of becoming a victim of sexual abuse ( see Matter of Victor S., 166 A.D.2d 535, 560 N.Y.S.2d 815; cf. Matter of Danielle S., 282 A.D.2d 680, 681, 723 N.Y.S.2d 704).