| Matter of Iyonte G. (Charles J.R.) |
| 2011 NY Slip Op 01658 [82 AD3d 765] |
| March 1, 2011 |
| Appellate Division, Second Department |
| In the Matter of Iyonte G. Administration for Children's Services,Respondent; Charles J.R., Appellant. (Proceeding No. 1.) In the Matter of Nyasia D.Administration for Children's Services, Respondent; Charles J.R., Appellant. (Proceeding No. 2.)In the Matter of Jacob R. Administration for Children's Services, Respondent; Charles J.R.,Appellant. (Proceeding No. 3.) In the Matter of Charlie R. Administration for Children'sServices, Respondent; Charles J.R., Appellant. (Proceeding No. 4.) In the Matter of Calik R.Administration for Children's Services, Respondent; Charles J.R., Appellant. (Proceeding No. 5.)In the Matter of Chandler E. Administration for Children's Services, Respondent; Charles J.R.,Appellant. (Proceeding No. 6.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and FayNg of counsel), for respondent. Angella S. Hull, Jamaica, N.Y., Attorney for the Children Iyonte G. and Nyasia D. Christian P. Myrill, Jamaica, N.Y., Attorney for the Children Jacob R., Charlie R., andChandler E.
In related child protective proceedings pursuant to Family Court Act article 10, Charles J.R.appeals from an order of disposition of the Family Court, Queens County (Richroath, J.), datedMay 29, 2009, which, upon a fact-finding order of the same court dated January 5, 2009, findingthat he sexually abused the child Iyonte G., and derivatively abused the remaining five subjectchildren, directed, inter alia, that he have no contact with his stepchildren Iyonte G. and NyasiaG., and no contact with his biological children except agency-supervised visitation. Justice Enghas been substituted for the late Justice Fisher (see 22 NYCRR 670.1 [c]).
Ordered that the order is reversed, on the law and the facts, without costs or disbursements,the petitions are denied, and the proceedings are dismissed.
The instant controversy arises from an out-of-court statement made by Iyonte G., then eightyears old, to her mother, Lynn G., to the effect that her stepfather put his penis in her mouth andmade a crude and obscene comment with respect to what he wanted Iyonte G. to do to him. TheAdministration for Children's Services (hereinafter the petitioner) filed a sexual abuse petitionagainst the stepfather for sexually abusing Iyonte G., and derivative sexual abuse petitions withregard to Iyonte G.'s sister, Nyasia G., then six years old, and the other subject children, who arethe stepfather's biological children.
In a child protective proceeding, the petitioner has the burden of proving abuse or neglect bya preponderance of the evidence (see Family Ct Act § 1046 [b] [i]). Pursuant toFamily Court Act § 1046 (a) (vi), "previous statements made by the child relating to anyallegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, suchstatements shall not be sufficient to make a fact-finding of abuse or neglect." The out-of-courtstatements may be corroborated by "[a]ny other evidence tending to support the reliability of theprevious statements" (Family Ct Act § 1046 [a] [vi]). However, "there is a threshold ofreliability that the evidence must meet" (Matter of Danielle L., 307 AD2d 294, 295[2003]; see Matter of Kayla F., 39AD3d 983, 984 [2007]; Matter of Stephen GG., 279 AD2d 651, 652 [2001];Matter of Zachariah VV., 262 AD2d 719 [1999]). Moreover, "repetition of an accusationby a child does not corroborate the child's prior account of it" (Matter of Francis CharlesW., 71 NY2d 112, 124 [1987]; see Matter of Christina F., 74 NY2d 532, 537 [1989];Matter of Kayla F., 39 AD3d at 984; Matter of Danielle L., 307 AD2d at 295;Matter of Jared XX., 276 AD2d 980, 981 [2000]).
Under the facts of this case, the Family Court erred in finding that Iyonte G.'s out-of-courtstatements were sufficiently corroborated. While the Family Court could properly draw a stronginference against the stepfather for failing to testify (see Matter of Joseph C., 297 AD2d673 [2002]; Matter of Jenny N., 262 AD2d 951 [1999]), "that inference cannot establishcorroboration where it otherwise does not exist" (Matter of Kayla F., 39 AD3d at 985).
Since the finding of derivative abuse regarding the remaining five children was based on theabuse determination with respect to Iyonte G., that finding, too, is unsupported by the evidence(see Matter of Kayla F., 39 AD3d983 [2007]; Matter of Kymberlee P., 231 AD2d 526, 527 [1996]).
In the absence of sufficient corroboration, the petitions must be dismissed. Florio, J.P., Eng,Leventhal and Hall, JJ., concur.