| Matter of Adelia V. (Braun) |
| 2012 NY Slip Op 00218 [91 AD3d 659] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| In the Matter of Adelia V. Administration for Children's Services,Respondent; Ilona Braun, Appellant, et al., Respondent. (Proceeding No. 1.) In the Matter ofDaniel V. Administration for Children's Services, Respondent; Ilona Braun, Appellant, et al.,Respondent. (Proceeding No. 2.) In the Matter of Roman V. Administration for Children'sServices, Respondent; Ilona Braun, Appellant, et al., Respondent. (Proceeding No.3.) |
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Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and SusanB. Eisner of counsel), for petitioner-respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), attorneyfor the children.
In three related child protective proceedings pursuant to Family Court Act article 10, themother appeals, as limited by her brief, from so much of an order of fact-finding of the FamilyCourt, Richmond County (McElrath, J.), dated May 27, 2010, as, after a fact-finding hearing,found that she abused the child Roman V. and derivatively neglected the children Adelia V. andDaniel V.
Ordered that the order of fact-finding is reversed insofar as appealed from, on the facts,without costs or disbursements, the amended petitions are denied, and the proceedings aredismissed.
In December 2008 the petitioner filed three petitions against the father alleging that he hadabused and neglected Roman V., Daniel V., and Adelia V. The petitions arose from an incidentwhich occurred on December 18, 2008, at the parties' home, during which the father inflictedexcessive corporal punishment upon Roman, then age 16, by punching him in the face andkicking his legs. The father also perpetrated acts of domestic violence against the mother. Thetwo [*2]other children were present in the home at the time of theincident and witnessed it.
Thereafter, on December 29, 2008, the petitioner amended the petitions to include the motheras a respondent after the father advised the petitioner that he had observed the mother andRoman, who is her stepson, engaged in a sexual act, which triggered his hitting the mother andRoman. The petitioner amended the petitions to assert that the mother had abused Roman andderivatively neglected Adelia and Daniel. The amended petitions noted that there had been aprior finding that the mother had sexually abused Roman in August 2006, when he was 14 yearsold, and derivatively abused Adelia and Daniel. The mother had consented, without anadmission, to this prior finding.
At the fact-finding hearing, the father testified that, upon arriving home from work andseeing Adelia and Daniel in the living room, he overheard Roman and the mother having aconversation in the kitchen regarding Roman moving out of the house when he turned 18, whichwould enable the mother to come visit him. Upon hearing the sound of kissing and clothes beingremoved, the father entered the kitchen and saw the mother and Roman engaged in a sexual act.
The father admitted pushing the mother forcefully, causing her cheek to hit the refrigerator.He claimed that he did not strike Roman, but, instead, only pushed him down the stairs into thebasement. However, he acknowledged pleading guilty in a related criminal court proceeding toan assault of Roman. He also stated that he did not inform the petitioner about what reallyoccurred at the house until after he was arrested.
According to testimony at the fact-finding hearing, the father beat the mother and Romanafter overhearing the conversation between the two of them concerning Roman's plans to moveout of the house because he could no longer tolerate the father. The mother testified that nosexual contact had occurred between her and Roman, either in December 2008 or previously inAugust 2006. She testified that she consented to the prior finding of sexual abuse so that shecould return home to her children.
The assigned caseworker testified that Adelia and Daniel told him that they were homeplaying in the living room when they heard the father yelling and screaming and observed thefather hit and push the mother and hit Roman. Before this occurred, they had been running in andout of the kitchen and did not see anything untoward occur between the mother and Roman. Thecaseworker stated that Adelia told him that she saw Roman touch the mother but then admittedthat this was false, she was only repeating what she heard her father say and she did notunderstand what was meant by the word "touch."
The caseworker also testified that the mother was loving and nurturing to her children andthat all allegations of sexual contact between the mother and Roman were based solely on thefather's statements.
The Family Court, crediting the father's testimony and relying on the previous finding ofabuse against the mother, found, inter alia, that the mother abused Roman and derivativelyneglected Adelia and Daniel. The mother appeals from that portion of the fact-finding orderwhich made a finding against her.
A finding that a child is abused or neglected must be based on a preponderance of theevidence (see Family Ct Act § 1046 [b] [i]; Matter of Tammie Z., 66 NY2d1, 3 [1985]; Matter of Alexander J.S.[David S.], 72 AD3d 829, 830 [2010]). Although deference is to be given to the hearingcourt's determinations concerning credibility (see Matter of Andrew B. [Deborah B.], 73 AD3d 1036, 1036[2010]), where that court's credibility determination is not supported by the record, "this Court isfree to make its own credibility assessments and overturn the determination of the hearing court"(Matter of Serenity S. [Tyesha A.],89 AD3d 737, 738 [2011]).
Here, the Family Court's findings are not supported by the record. The father's testimony,upon which the Family Court predominantly relied in reaching its determination of abuse andderivative neglect by the mother, was internally inconsistent at various points. Moreover, some ofhis testimony conflicted with certain evidence in the record, including evidence of injuries [*3]sustained by the mother. In addition, the assigned caseworkertestified that the father had related three different versions of the relevant incident to him. Thus,on this record, the petitioner failed to establish by a preponderance of the evidence that themother abused Roman. Accordingly, the Family Court improperly found that the mother abusedRoman and derivatively neglected Adelia and Daniel. Dickerson, J.P., Hall, Austin and Miller,JJ., concur.