| Matter of Kassandra V. (Sylvia L.) |
| 2011 NY Slip Op 09338 [90 AD3d 940] |
| December 20, 2011 |
| Appellate Division, Second Department |
| In the Matter of Kassandra V. Administration for Children'sServices, Respondent; Sylvia L., Appellant, et al., Respondent. (Proceeding No. 1.) In the Matterof Gianna C., Also Known as Gianna L. Administration for Children's Services, Respondent;Sylvia L., Appellant, et al., Respondent. (Proceeding No. 2.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andNorman Corenthal of counsel), for petitioner-respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Elana Roffman of counsel),attorney for the child Kassandra V. Barbara J. Caravello, Jamaica, N.Y., attorney for the child Gianna C., also known as GiannaL.
In related proceedings pursuant to Family Court Act article 10, the mother appeals, as limitedby her brief, (1) from so much of a fact-finding order of the Family Court, Queens County(Richroath, J.), dated June 14, 2010, as, after a hearing, found that she had sexually abused thechild Gianna C., also known as Gianna L., and derivatively neglected the child Kassandra V., (2),from an order of disposition of the same court dated September 10, 2010, which, upon thefact-finding order, inter alia, released Kassandra V. to her custody with supervision by theAdministration for Children's Services for a period of three months, and (3), from an order ofdisposition of the same court dated November 10, 2010, which, upon the fact-finding order,among other things, placed Gianna C., also known as Gianna L., in the custody of theCommissioner of Social Services of the City of New York until the conclusion of the nextpermanency hearing, scheduled to begin on April 12, 2011.
Ordered that the appeal from the fact-finding order is dismissed, without costs or [*2]disbursements, as the fact-finding order was superseded by theorders of disposition and is brought up for review on the appeals from the orders of disposition;and it is further,
Ordered that the appeal from so much of the order of disposition dated September 10, 2010,as released Kassandra V. to the mother's custody with supervision by the Administration forChildren's Services for a period of three months is dismissed as academic, without costs ordisbursements, since the period of supervised custody has expired; and it is further,
Ordered that the order of disposition dated September 10, 2010, is affirmed insofar asreviewed, without costs or disbursements; and it is further,
Ordered that the order of disposition dated November 10, 2010, is affirmed, without costs ordisbursements.
At a fact-finding hearing in a child protective proceeding pursuant to Family Court Actarticle 10, the petitioner has the burden of establishing, by a preponderance of the evidence, thatthe subject child has been abused or neglected (see Family Ct Act § 1046 [b] [i];Matter of Tammie Z., 66 NY2d 1 [1985]; Matter of Ndeye D. [Benjamin D.], 85 AD3d 1026, 1027 [2011];Matter of Daniel R. [Lucille R.], 70AD3d 839, 841 [2010]). A child's out-of-court statements may form the basis for a findingof abuse or neglect if they are sufficiently corroborated by other evidence tending to support theirreliability (see Family Ct Act § 1046 [a] [vi]; Matter of Nicole V., 71NY2d 112, 123 [1987]), and the Family Court has considerable discretion in deciding whether achild's out-of-court statements describing incidents of abuse or neglect have been reliablycorroborated, and whether the record as a whole supports a finding of abuse or neglect (seeMatter of Christina F., 74 NY2d 532, 536 [1989]; Matter of Nicole V., 71 NY2d at119; Matter of Imman H., 49 AD3d879, 880 [2008]; Matter of Katherine S., 271 AD2d 538 [2000]).
Contrary to the mother's contention, the Family Court's determination that she sexuallyabused the child Gianna C., also known as Gianna L., is supported by a preponderance of theevidence. Gianna C.'s out-of-court statement that her mother had committed an act of sexualabuse upon her was corroborated by the expert testimony of two psychologists who evaluatedGianna C., and concluded that she exhibited behavior indicative of sexual abuse (see Matterof Jaclyn P., 86 NY2d 875, 877-878 [1995], cert denied sub nom. Papa v Nassau CountyDept. of Social Servs., 516 US 1093 [1996]; Matter of Nicole V., 71 NY2d at120-121; Matter of Andrew W.[Randolph A.W.], 83 AD3d 727 [2011]; Matter of Tristan R., 63 AD3d 1075, 1077 [2009]; Matter of Candace S., 38 AD3d786, 787-788 [2007]; Matter of Cassandra C., 300 AD2d 303, 304 [2002]).
Further, evidence that the mother sexually abused Gianna C., and additionally failed toprotect that child from being repeatedly sexually abused by the father, demonstrates that she has aflawed understanding of her duties as a parent and a lack of judgment sufficient to support afinding that she derivatively neglected Kassandra V. (see Matter of Andrew W. [RandolphA.W.], 83 AD3d at 727-728; Matterof Lauryn H. [William A.], 73 AD3d 1175, 1177 [2010]; Matter of Grant W. [Raphael A.], 67AD3d 922 [2009]; Matter ofAbigail S., 21 AD3d 380, 381 [2005]).
The parties' remaining contentions are without merit. Rivera, J.P., Eng, Roman and Sgroi,JJ., concur.