| Matter of Imman H. |
| 2008 NY Slip Op 02842 [49 AD3d 879] |
| March 25, 2008 |
| Appellate Division, Second Department |
| In the Matter of Imman H., a Child Alleged to be Neglected.Administration for Children's Services, Respondent; Diane H.-A., Appellant, et al.,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Ronald E. Sternberg and JulieSteiner of counsel), for petitioner-respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel),attorney for the child.
In a proceeding pursuant to Family Court Act article 10, the mother appeals from statedportions of an order of disposition of the Family Court, Kings County (Lim, J.), dated February21, 2007, which, after a hearing, and upon an order of fact-finding of the same court datedSeptember 20, 2006, finding that the subject child was neglected by the mother, inter alia, placedthe child in the care of the Commissioner of the Kings County Department of Social Services.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
On July 7, 2005 a petition was filed alleging that the subject child was emotionally neglectedby her parents, in that they made her witness the abuse of her uncle and participate in the disposalof the uncle's dismembered corpse. At the fact-finding hearing, the petitioner's evidence includedthe child's out-of-court statements to a detective, the detective's testimony that the uncle'sremains were found at the location identified by the child, and a psychologist's testimony that thechild exhibited symptoms of post-traumatic stress disorder. The court found that the child was[*2]emotionally neglected and, inter alia, placed her in the careand custody of the Commissioner of the Kings County Department of Social Services. On appeal,the mother argues that the court erred in granting the motion of the attorney for the child to quashher subpoena to have the child testify at the fact-finding hearing and in denying her motions tohave the child's mental health records entered into evidence.
Family Court Act § 1046 (a) (vi) specifically provides that "[t]he testimony of thechild shall not be necessary to make a fact-finding of abuse or neglect." A child's out-of-courtstatements relating to an allegation of neglect may, if adequately corroborated by evidencetending to establish their reliability, support a finding of neglect (see Family Ct Act§ 1046 [a] [vi]; Matter of Christopher L., 19 AD3d 597 [2005]; Matter ofKhadryah H., 295 AD2d 607, 608 [2002]). "Family Court Judges . . . haveconsiderable discretion to decide whether the child's out-of-court statements describing incidentsof abuse or neglect have, in fact, been reliably corroborated and whether the record as a wholesupports a finding of [neglect]" (Matter of Nicole V., 71 NY2d 112, 119 [1987]; seeMatter of Candace S., 38 AD3d 786, 787 [2007]; Matter of Khadryah H., 295 AD2dat 608).
Here, the child's out-of-court statements were corroborated by the testimony of a detectiveand the testimony and report of the child's treating psychologist. That evidence, together with anegative inference drawn from the appellant's failure to testify, was sufficient to support thecourt's finding of neglect. Under the circumstances, and based on the evidence of the potentialpsychological harm that testifying would cause to the child, the court providently exercised itsdiscretion in granting the motion of the attorney for the child to quash the mother's subpoena tocompel the child to testify (see Matter of Christopher L., 19 AD3d 597 [2005]; seealso Matter of Karen Patricia G., 44 AD3d 658 [2007]).
After an in camera inspection, the court providently exercised its discretion in denying themother's motions for production of the child's psychiatric and social work treatment records fromvarious institutions because the mother failed to demonstrate that the records were needed for thepreparation of her case (see Family Ct Act § 1038 [d]). Mastro, J.P., Covello,Dickerson and Eng, JJ., concur.