Opinion
895 CAF 18–02034
11-15-2019
In the MATTER OF CARMELLAH Z., Judasia V., Ramiere V., and Zackery V. Onondaga County Department of Children and Family Services, Petitioner–Respondent; v. Casey V., Respondent–Appellant, and Isaiah Z., Respondent. (Appeal No. 2.)
LINDA M. CAMPBELL, SYRACUSE, FOR RESPONDENT–APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (YVETTE VELASCO OF COUNSEL), FOR PETITIONER–RESPONDENT.
LINDA M. CAMPBELL, SYRACUSE, FOR RESPONDENT–APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (YVETTE VELASCO OF COUNSEL), FOR PETITIONER–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the corrected order so appealed from is unanimously reversed on the law without costs and the petition against respondent Casey V. is dismissed.
Memorandum: In this Family Court Act article 10 proceeding, respondent mother appeals from a corrected order that, as relevant to this appeal, determined that she neglected four of her five children.
We note at the outset that " ‘[e]ffective appellate review, whatever the case but especially in ... neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses’ " ( Giordano v. Giordano, 93 A.D.2d 310, 312, 463 N.Y.S.2d 97 [3d Dept. 1983] ; see Matter of Langdon v. Langdon, 137 A.D.3d 1580, 1581, 27 N.Y.S.3d 750 [4th Dept. 2016] ). Here, Family Court failed to satisfy its obligation " ‘to set forth those facts essential to its decision’ " with respect to both the mother's motion to dismiss the petition and the ultimate determinations of neglect and the best interests of the children ( Matter of Rocco v. Rocco, 78 A.D.3d 1670, 1671, 910 N.Y.S.2d 826 [4th Dept. 2010] ; see CPLR 4213[b] ; Family Ct. Act § 165[a] ; Matter of Graci v. Graci, 187 A.D.2d 970, 971, 590 N.Y.S.2d 377 [4th Dept. 1992] ). The verbatim repetition of allegations contained in the petition in the spaces provided on the preprinted order of fact-finding and disposition is insufficient to fulfill that obligation. We nonetheless conclude that the record is sufficient for this Court to resolve the mother's appeal on the merits (see Matter of Yaddow v. Bianco, 115 A.D.3d 1338, 1339, 984 N.Y.S.2d 250 [4th Dept. 2014] ; see generally Rocco, 78 A.D.3d at 1671, 910 N.Y.S.2d 826 ).
The mother contends that the court erred in denying her motion to dismiss the petition at the close of petitioner's proof on the ground that petitioner failed to establish a prima facie case that the children were neglected. We agree, and we therefore reverse the corrected order and dismiss the petition against the mother.
"While the burden of proving abuse or neglect always rests with petitioner, upon a motion ... to dismiss a Family Court Act article 10 petition at the close of petitioner's case, ‘the proper inquiry [is] whether petitioner [has] made out a prima facie case, thereby shifting the burden to respondent[ ] to rebut the evidence of parental culpability’ " ( Matter of Camara R., 263 A.D.2d 710, 712, 693 N.Y.S.2d 681 [3d Dept. 1999] ; see Matter of Mary R.F. [Angela I.], 144 A.D.3d 1493, 1493, 41 N.Y.S.3d 341 [4th Dept. 2016], lv denied 28 N.Y.3d 915, 2017 WL 628934 [2017] ). "[A] party seeking to establish neglect must show, by a preponderance of the evidence ..., first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship" ( Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004], citing Family Ct. Act § 1046 [b][i] ). "In each case, additionally, there must be a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child's impairment or imminent danger of impairment" ( id. at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). "A child may be found to be neglected when the parent knew or should have known of circumstances requiring action to avoid harm or the risk of harm to the child and failed to act accordingly" ( Matter of Brian P. [April C.], 89 A.D.3d 1530, 1530, 933 N.Y.S.2d 792 [4th Dept. 2011] ).
Here, petitioner alleged in its petition, inter alia, that the mother neglected the subject children because there had been incidents of age-inappropriate sexual conduct between the three youngest children and an additional sibling not named in the petition, that the youngest child also engaged in an age-inappropriate sexual act with a non-family member, and that the mother knew of the latter incident and failed to take appropriate action. Notably, petitioner conceded that it was alleging that the mother was aware of only the single incident between the youngest child and the non-family member and that the mother did not have firsthand knowledge of that incident.
To establish that the incident between the youngest child and the non-family member in fact occurred, a prerequisite to the neglect finding sought here (see Matter of Lebraun H. [Brenda H.], 111 A.D.3d 1439, 1440, 975 N.Y.S.2d 524 [4th Dept. 2013] ), petitioner submitted only the testimony of two caseworkers who described the disclosure made by the youngest child regarding that incident. " ‘A child's out-of-court statements may form the basis for a finding of [neglect] as long as they are sufficiently corroborated by [any] other evidence tending to support their reliability’ " ( Matter of Nicholas J.R. [Jamie L.R.], 83 A.D.3d 1490, 1490, 922 N.Y.S.2d 679 [4th Dept. 2011], lv denied 17 N.Y.3d 708, 2011 WL 4028757 [2011] ; see Family Ct. Act § 1046[a][vi] ). Corroboration is required not "because statements of children are generally unreliable but because the out-of-court statements are hearsay and the statute requires some further evidence to establish their reliability" ( Matter of Nicole V., 71 N.Y.2d 112, 118, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ). "Although the degree of corroboration [required] is low, a threshold of reliability must be met" ( Matter of East v. Giles, 134 A.D.3d 1409, 1411, 23 N.Y.S.3d 502 [4th Dept. 2015] [internal quotation marks omitted]; see Matter of Zukowski v. Zukowski, 106 A.D.3d 1293, 1294, 965 N.Y.S.2d 231 [3d Dept. 2013] ). "The ‘repetition of an accusation does not corroborate a child's prior statement’ ..., although the reliability threshold may be satisfied by the testimony of an expert" ( Zukowski, 106 A.D.3d at 1294, 965 N.Y.S.2d 231 ; see East, 134 A.D.3d at 1411, 23 N.Y.S.3d 502 ).
We agree with the mother that petitioner failed to offer sufficient evidence to corroborate the out-of-court disclosure of the youngest child, who was five years old at the time of the interviews. Although the testimony of the two caseworkers established that the disclosure reflected age-inappropriate knowledge of sexual matters, petitioner failed to submit "[a]ny other evidence tending to support" the reliability of the youngest child's statements apart from the disclosure itself ( Family Ct. Act § 1046[a][vi] [emphasis added]; see Nicole V., 71 N.Y.2d at 118, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; cf. Matter of Brooke T. [Justin T.], 156 A.D.3d 1410, 1411, 67 N.Y.S.3d 377 [4th Dept. 2017] ; see also Matter of Liam M.J. [Cyril M.J.], 170 A.D.3d 1623, 1624, 96 N.Y.S.3d 798 [4th Dept. 2019], lv denied 33 N.Y.3d 911, 2019 WL 4066980 [2019] ; Matter of Janiece B. [James D.B.], 93 A.D.3d 1335, 1335–1336, 940 N.Y.S.2d 508 [4th Dept. 2012] ). For example, the disclosure was not independently substantiated by any of the other involved children (cf. Matter of Annarae I. [Jennifer K.], 148 A.D.3d 1243, 1245, 49 N.Y.S.3d 186 [3d Dept. 2017], lv denied 29 N.Y.3d 909, 2017 WL 2434751 [2017] ), the eldest of whom was apparently not even interviewed during petitioner's investigation.
Further, although expert validation testimony may also constitute sufficient evidence to corroborate a child's out-of-court statement, no such expert testimony was submitted by petitioner. The two caseworkers who testified on behalf of petitioner asserted that they utilized forensic interviewing techniques to avoid leading the youngest child during their interviews, but petitioner failed to offer any evidence establishing that either caseworker was qualified to give expert validation testimony in such matters (see Matter of Melissa K., 254 A.D.2d 770, 770–771, 678 N.Y.S.2d 759 [4th Dept. 1998] ; cf. Matter of Jaclyn P., 86 N.Y.2d 875, 878 n., 635 N.Y.S.2d 169, 658 N.E.2d 1042 [1995], cert denied 516 U.S. 1093, 116 S.Ct. 816, 133 L.Ed.2d 760 [1996] ).
The mother's purported admission to the caseworkers also fails to corroborate the youngest child's disclosure. Although the caseworkers both testified that the mother indicated an awareness of the incident between the youngest child and the non-family member prior to the caseworkers disclosing any details of the youngest child's disclosure, petitioner conceded that the mother did not have firsthand knowledge of the incident. An admission by the mother "that she had heard that the purported prior incident occurred in the manner stated by others ... is ‘in no sense an admission of any fact pertinent to the issue, but a mere admission of what [she] had heard without adoption or indorsement’ " ( Christopher P. v. Kathleen M.B., 174 A.D.3d 1460, 1462, 105 N.Y.S.3d 750 [4th Dept. 2019] ).
In addition to the failure to sufficiently corroborate the youngest child's disclosure, petitioner further failed to present sufficient evidence that the mother became aware of the incident between the youngest child and the non-family member at a time when she could have acted "to avoid harm or the risk of harm to the child[ren but] failed to act accordingly" ( Brian P., 89 A.D.3d at 1530, 933 N.Y.S.2d 792 ). Specifically, petitioner offered no admissible evidence regarding the time frame when the mother became aware of that incident. Absent such evidence, we cannot conclude that the mother had sufficient time to act but failed to appropriately do so.
Moreover, one of the caseworkers testified that, although she did not "believe" that the mother ever expressed concerns regarding the sexual behavior of the children, she could not be sure that the mother had not done so. Notably, an inability to remember details infected the testimony of both caseworkers, petitioner's only witnesses, including an inability at times to recall names and ages of the involved children. We therefore conclude that petitioner failed to establish by a preponderance of the evidence that the mother neglected the subject children by failing to act as " ‘a reasonable and prudent parent’ " would have acted under the circumstances ( Matter of Afton C. [James C.], 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 [2011] ; see Matter of Kaylee D. [Kimberly D.], 154 A.D.3d 1343, 1344, 61 N.Y.S.3d 783 [4th Dept. 2017] ).
In light of our conclusion, we do not address the mother's remaining contentions.