| Matter of Jada K.E. (Richard D.E.) |
| 2012 NY Slip Op 04338 [96 AD3d 744] |
| June 6, 2012 |
| Appellate Division, Second Department |
| In the Matter of Jada K.E. Administration for Children's Services,Appellant; Richard D.E. III et al., Respondents. (Proceeding No. 1.) In the Matter of Yamila E.Administration for Children's Services, Appellant; Richard D.E. III et al., Respondents.(Proceeding No. 2.) |
—[*1] Patricia A. Carrington, Brooklyn, N.Y., for respondent Richard D.E. III Deana Balahtsis, New York, N.Y. (Meghan R. Buckwalter of counsel), for respondentKhaldia E. Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine and Janet Neustaetter of counsel),attorney for the children.
In two related child protective proceedings pursuant to Family Court Act article 10, theAdministration for Children's Services appeals from an order of the Family Court, Kings County(Weinstein, J.), dated July 22, 2011, which, after a fact-finding hearing, dismissed the petitions.
Ordered that the order is affirmed, without costs or disbursements.
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]). To satisfy thisstandard, " 'Family Court Act § 1046 (a) (vi) allows the child's prior out-of-courtstatements relating to the abuse or neglect to be introduced into evidence, provided that thesehearsay statements are corroborated, so as to ensure their reliability' " (Matter of Tristan R., 63 AD3d1075, 1076 [2009], quoting Matter of Department of Social Servs. v Waleska M.,195 AD2d 507, 509 [1993]; see Matter of Nicole V., 71 NY2d 112, 123 [1987]; Matter of Jeshaun R. [Ean R.], 85AD3d 798, 798 [2011]; Matter ofFrank F., 12 AD3d 601 [2004]; Matter of Khadryah H., 295 AD2d 607 [2002]).There is, however, a "threshold of reliability that the evidence must meet" (Matter of Iyonte G. [Charles J.R.], 82AD3d 765, 767 [2011]; see Matter of Jeshaun R. [Ean R.], 85 AD3d at 798;Matter of Jaclyn L., 307 AD2d 294 [2003]). The Family Court has " 'considerablediscretion to decide whether the child's out-of-court statements describing incidents [*2]of abuse or neglect have, in fact, been reliably corroborated' " (Matter of Candace S., 38 AD3d786, 787 [2007], quoting Matter of Christina F., 74 NY2d 532, 536 [1989]; seeMatter of Nicole V., 71 NY2d at 119; Matter of Tristan R., 63 AD3d at 1077).Moreover, where the Family Court is primarily confronted with issues of credibility, its factualfindings must be accorded considerable deference on appeal (see Matter of Candace S., 38 AD3d 786 [2007]; Matter of Sylvia J., 23 AD3d 560[2005]).
Here, with regard to the allegations of abuse and neglect against the father, the Family Courtproperly found that the out-of-court statement of his daughter, Jada K.E., regarding sexualconduct was not sufficiently corroborated by other evidence tending to support the reliability ofthat statement. Contrary to the petitioner's contentions, neither the out-of-court statements of thefather's other daughter, Yamila E., nor the drawing produced by Jada K.E., constituted reliablecorroboration. While out-of-court statements of siblings may be used to cross-corroborate oneanother (see Matter of Tristan R., 63 AD3d at 1076), Yamila specifically denied anysexual behavior and insisted that Jada K.E. was lying. Moreover, although Jada K.E.'s drawingwas arguably a visual representation of her out-of-court statement, it was made at the same timeshe made her lone accusation of abuse and was made at the request of the detective who wasinterviewing her. Under these circumstances, the drawing was simply a repetition of theaccusation, which did not serve to corroborate her prior account (see Matter of Nicole V.,71 NY2d at 124; see Matter of Zachariah VV., 262 AD2d 719, 720 [1999]). As there wasno other evidence tending to corroborate Jada K.E.'s out-of-court statement, the Family Courtproperly dismissed so much of the petitions as alleged abuse and neglect by the father (see Matter of Jeshaun R. [Ean R.], 85AD3d 798 [2011]; Matter of IyonteG. [Charles J.R.], 82 AD3d 765 [2011]; Matter of Kayla F., 39 AD3d 983 [2007]; Matter of JaclynL., 307 AD2d 294 [2003]).
Furthermore, the Family Court properly dismissed so much of the petitions as alleged neglectby the mother. While the mother permitted the father to transport her and the children home fromday care one afternoon, in violation of an order of protection, "a violation of an order ofprotection, standing alone, is insufficient to establish neglect" (Matter of Paige AA. [Anthony AA.],85 AD3d 1213, 1217 [2011]; seeMatter of Andre G., 64 AD3d 913, 915 [2009]). Under the circumstances here, where anemergency situation was presented and where the father's exposure to the children was minimal,the Family Court correctly determined that the mother did not engage in conduct that impaired orthreatened the physical, mental, or emotional well being of the children (see Matter of Julianne XX., 13 AD3d1031, 1032 [2004]).
The petitioner's remaining contentions are without merit. Skelos, J.P., Leventhal, Belen andRoman, JJ., concur.