| Matter of Melissa O. (David O.) |
| 2010 NY Slip Op 03938 [73 AD3d 783] |
| May 4, 2010 |
| Appellate Division, Second Department |
| In the Matter of Melissa O., a Child Alleged to be Neglected.Suffolk County Department of Social Services, Respondent; David O.,Appellant. |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (James G. Bernet of counsel), forrespondent. Diane B. Groom, Central Islip, N.Y., attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the father appeals,as limited by his brief, from so much of an order of fact-finding and disposition of the FamilyCourt, Suffolk County (Freundlich, J.), entered February 20, 2009, as, after a fact-findinghearing, found that he sexually abused his daughter's friend, thereby demonstrating afundamental lack of parental judgment warranting a finding of neglect with respect to hisdaughter, and placed him under the supervision of the Suffolk County Department of SocialServices pursuant to stated terms and conditions.
Ordered that the order is reversed insofar as appealed from, on the law and the facts, withoutcosts or disbursements, the petition is denied, and the proceeding is dismissed.
Although a determination of the Family Court with respect to issues of credibility is "entitledto considerable deference on appeal unless clearly unsupported by the record" (Matter of Samantha B., 5 AD3d590, 591 [2004]), in the instant case, the Family Court's credibility determination is notsupported by the record. Upon review of the record of a fact-finding hearing in the Family Court,this Court is free to make its own credibility assessments and overturn the determination of theFamily Court if it is not supported by the record (see Matter of Tristan R., 63 AD3d 1075 [2009]; Matter of Samuel D.-C., 40 AD3d853 [2007]; Matter of Harvey v Share, 119 AD2d 823 [1986]). Exercising thatauthority, we conclude that the complainant's allegations were not supported by the weight of thecredible evidence. Therefore, the petition must be denied and the proceeding dismissed.
The parties' remaining contentions need not be addressed in light of our determination.Miller, J.P., Leventhal, Chambers and Lott, JJ., concur.