| Matter of Krista LL. |
| 2007 NY Slip Op 10023 [46 AD3d 1209] |
| December 20, 2007 |
| Appellate Division, Third Department |
| In the Matter of Krista LL. and Another, Children Alleged to beAbused and/or Neglected. Columbia County Department of Social Services, Respondent;Maryann LL., Appellant. |
—[*1] James A. Carlucci, Hudson, for respondent. Ann M. Weaver, Law Guardian, Red Hook. Marlene Moberly, Law Guardian, Freehold.
Mugglin, J. Appeal from an order of the Family Court of Columbia County (Czajka, J.),entered June 1, 2005, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to adjudicate respondent's children to be neglected.
Respondent is the mother of two daughters who are the subjects of this abuse/neglectproceeding. When the older daughter revealed to respondent that respondent's husband had beensexually abusing her, she immediately took this daughter to counseling and the matter wasreported to the State Police. This proceeding, instituted in August 2004, alleged neglect of bothdaughters and was predicated on respondent's conduct after the initial revelation of the sexualabuse. Following a fact-finding hearing and a Lincoln hearing, Family Court determinedboth children to be neglected by respondent. The order of disposition, among other things, placedthe victim in the custody of petitioner for 12 months. Respondent appeals, arguing that FamilyCourt [*2]erred by finding that she failed to protect her olderdaughter and she placed her younger daughter at imminent risk of harm.
Respondent's first argument, while correct, is misplaced. Since she had no knowledge of thesexual abuse prior to the child's reporting it to her and she immediately obtained counselingservices for the child, any finding of neglect on such evidence would fail (see Matter of Vivian OO., 34 AD3d1111, 1113 [2006], lv denied 8 NY3d 808 [2007]). However, at issue is respondent'ssubsequent conduct, which can form the basis for a finding of neglect (see e.g. Matter ofBrent HH., 309 AD2d 1016, 1018 [2003], lv denied 1 NY3d 506 [2004]). In thisregard, our review of the record establishes that Family Court's determination of neglect has asound and substantial basis (see Matter of Brandyn P., 278 AD2d 533, 535 [2000];Matter of Nathaniel TT., 265 AD2d 611, 614 [1999], lv denied 94 NY2d 757[1999]). To establish neglect, the preponderance of the evidence must demonstrate that thechild's physical, mental or emotional condition has been impaired or is in imminent danger ofbecoming impaired and that the actual or threatened harm to the child is a consequence of thefailure of the parent to exercise a minimum degree of proper supervision or guardianship of thechild (see Family Ct Act § 1046 [b] [i]; Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; Matter of John O., 42 AD3d 687,687 [2007]).
Here, the record is replete with evidence that respondent refused to believe that the sexualabuse occurred, despite the husband's confession, she repeatedly accused the victim of lying andattempting to break up the family, she convinced the younger daughter that the accusationsagainst the husband were lies and she inflicted corporal punishment upon the victim when sherefused to retract her allegations. Additionally, respondent placed the older daughter at the homeof friends—where the husband had been staying—and allowed her younger daughterto be further exposed to the husband after his release from jail and failed to provide anyassistance with the emotional needs of the children, despite their evident necessity. In our view,this conduct constitutes a severe deviation from the course which would be adopted by areasonably prudent parent, creates the potential of harm to the mental and emotional condition ofboth children, and demonstrates a sound and substantial basis for the neglect findings (seeMatter of Mary S., 279 AD2d 896, 897 [2001]).
Next, respondent's assignation of error with respect to the finding that the younger daughterwas placed in imminent danger is based on the claim that Family Court relied on unsubstantiatedevidence from petitioner's caseworker who testified that respondent allowed the husband backinto the home—where the younger daughter was—after his release from jail.Respondent's conflicting testimony in this regard simply created a credibility issue. Issues ofcredibility and the probative value of conflicting testimony are issues to be resolved within thediscretion of Family Court (see Matterof Rebecca X., 18 AD3d 896, 898 [2005], lv denied 5 NY3d 707 [2005]), andwe find no basis to disturb Family Court's crediting the uncorroborated evidence. Under thesefacts, against the background of respondent's continued refusal to believe the allegations ofsexual abuse and the exposure of the younger daughter to the abuse, Family Court properlyconcluded that allowing her to be exposed to the husband constituted neglect (see Matter ofVivian OO., 34 AD3d at 1113; Matter of Mary S., 279 AD2d at 897; Matter ofColleen CC., 232 AD2d 787, 789 [1996]).
Cardona, P.J., Crew III, Rose and Kane, JJ., concur. Ordered that the order is affirmed,without costs.