| Matter of Elizabeth S. (Dona M.) |
| 2010 NY Slip Op 00906 [70 AD3d 453] |
| February 9, 2010 |
| Appellate Division, First Department |
| In the Matter of Elizabeth S., Appellant, and Katherine S. andAnother, Children Alleged to be Abused and/or Neglected. Dona M., Respondent;Administration for Children's Services, Appellant, et al.,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), forACS, appellant. Phillips Nizer LLP, New York (Elliot Wiener of counsel), for Dona M., respondent. Lawyers for Children, Inc., New York (Hal Silverman of counsel), and Proskauer Rose LLP,New York (Jennifer L. Jones of counsel), Law Guardian for Katherine S. and GwendolynS.
Order, Family Court, New York County (Karen I. Lupuloff, J.), entered on or aboutSeptember 26, 2008, which, after the commencement of respondent mother's testimony at afact-finding hearing, granted the mother's motion to dismiss the abuse and neglect petition asagainst her for failure to make out a prima facie case, unanimously reversed, on the law, withoutcosts, the motion denied, the petition reinstated, and the matter remanded for a continuedfact-finding hearing.
The court erred in finding that petitioner agency failed to establish prima facie that themother should have known of respondent stepfather's sexual abuse of her daughter and takenappropriate action to protect her. The daughter testified, inter alia, that she had told her mothertwice that she was being sexually harassed by the stepfather, that her mother had arranged thestepfather's regular visits to her bedroom at night (in an attempt to improve their relationship)and had approved of the massages the stepfather had given her, that her mother had ridiculed her[*2]claims and dismissed them as lies, that her mother deferred tothe stepfather in all family matters, and that she knew her mother would not believe her. Thistestimony, which the court credited, as well as e-mails sent by the mother to the daughter'sbiological father that tended to contradict her claim that she had no knowledge of her daughter'ssexual harassment complaints, made out a prima facie case of abuse (see Matter of JaquayO., 223 AD2d 422 [1996], lv denied 88 NY2d 801 [1996]). The burden then shiftedto the mother to explain her conduct and rebut the evidence of her culpability (Matter ofPhilip M., 82 NY2d 238, 244 [1993]). However, the motion to dismiss was made shortlyafter the mother began testifying but before she addressed the allegations against her, and themother never gave an explanation that would rebut the evidence of her culpability. Instead, thecourt observed that the mother's disinclination to believe her daughter's claims could beexplained in light of other evidence, which included certain out-of-court statements made by themother, about which petitioner and the law guardian had no opportunity to cross-examine her.Thus, the court apparently assumed, without evidentiary foundation, both that the mother wouldhave testified that her daughter's allegations were fabricated and that a claim of fabricationwould have constituted a reasonable explanation for her failure to take action to protect herdaughter. Concur—Tom, J.P., Andrias, Friedman, Nardelli and Catterson, JJ.