| Matter of Nyasia C. (Christine J.-L.) |
| 2016 NY Slip Op 01486 [137 AD3d 781] |
| March 2, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Nyasia C. Administration for Children'sServices, Appellant; Christine J.-L. et al., Respondents. (Proceeding No. 1.) In the Matterof Jaylen G. Administration for Children's Services, Appellant; Eddy G., Respondent.(Proceeding No. 2.) |
Zachary W. Carter, Corporation Counsel, New York, NY (Richard Dearing andDiana Lawless of counsel), for petitioner-appellant.
David Laniado, Cedarhurst, NY, for respondent-respondent Eddy G.
Rebecca Fort, Brooklyn, NY, for respondent-respondent Christine J.-L.
Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Judith Stern ofcounsel), attorney for the children.
Appeal from an order of the Family Court, Kings County (Robert D. Mulroy, J.),dated January 13, 2015. The order, after a fact-finding hearing, dismissed the petitionalleging that the child Nyasia C. was abused by the respondent Eddy G. and neglected bythe respondent Christine J.-L., and dismissed the petition alleging that the child Jaylen G.was derivatively abused by the respondent Eddy G.
Ordered that on the Court's own motion, the notice of appeal from a decision datedJanuary 13, 2015 is deemed to be a notice of appeal from the order dated January 13,2015 (see CPLR 5512 [a]); and it is further,
Ordered that the order is modified, on the facts, by deleting the provision thereofdismissing the petition in proceeding No. 1 insofar as asserted against the respondentEddy G. and the petition in proceeding No. 2, and substituting therefore a provisionfinding that the respondent Eddy G. abused the child Nyasia C. and derivatively abusedthe child Jaylen G.; as so modified, the order is affirmed, without costs or disbursements,and the matter is remitted to the Family Court, Kings County, for a dispositional hearingand dispositions thereafter on the petition in proceeding No. 1 insofar as asserted againstthe respondent Eddy G. and the petition in proceeding No. 2.
The petitioner commenced two related child protective proceedings pursuant toFamily Court Act article 10, alleging that the respondent Eddy G. sexually abused thethen four-year-[*2]old child Nyasia C. and derivativelyabused his son, the child Jaylen G. The petitioner further alleged that the respondentChristine J.-L., Nyasia C.'s mother, neglected Nyasia C. by failing to take the child tocounseling and failing to administer anti-HIV medication to the child after the discoveryof the alleged sexual abuse. Following a fact-finding hearing, the Family Court foundthat the petitioner failed to prove that Eddy G. abused Nyasia C. and derivatively abusedJaylen G. and dismissed the petitions. The petitioner appeals.
Contrary to the Family Court's determination, the petitioner met its burden ofestablishing, by a preponderance of the evidence (see Family Ct Act§ 1046 [b] [i]), that Eddy G. abused Nyasia C. and derivatively abusedJaylen G. (see Family Ct Act § 1012 [e]). A child's out-of-courtstatements may form the basis for a finding of abuse if they are sufficiently corroboratedby other evidence tending to support the reliability of the child's statements (seeFamily Ct Act § 1046 [a] [vi]; Matter of Nicole V., 71 NY2d 112,123 [1987]; Matter of AdreannaM. [Kety M.], 95 AD3d 1213, 1214 [2012]; Matter of Frank F., 12 AD3d 601, 601 [2004]). In thepresent case, the testimony of Christine J.-L. regarding her observations of Eddy G. andNyasia C. in bed together was sufficient to corroborate the child's statements regardingthe acts of abuse (see generallyMatter of Ishaq B. [Lea B.], 121 AD3d 889, 890 [2014]; Matter of Oluwashola P. [EmmaT.], 95 AD3d 778 [2012]).
Moreover, while the Family Court's credibility findings are accorded deference onappeal (see Matter of MichaelB. [Samantha B.], 130 AD3d 619, 620-621 [2015]; Matter of Mateo S. [Robin MarieY.], 118 AD3d 891, 893 [2014]), this Court is free to make its own credibilityassessments and to enter a finding of abuse where it is supported by the record (see generally Matter of Arthur G.[Tiffany M.], 112 AD3d 925, 925-926 [2013]; Matter of Serenity S. [TyeshaA.], 89 AD3d 737, 738-739 [2011]; Matter of Chanyae S. [Rena W.], 82 AD3d 1247 [2011]; Matter of Tristan R., 63 AD3d1075, 1077 [2009]). Contrary to the Family Court's determination, theinconsistencies in Christine J.-L.'s accounts of her observations did not render hertestimony unworthy of belief. Accordingly, we determine that the evidence adduced atthe hearing established that Eddy G. abused Nyasia C. and derivatively abused Jaylen G.,and we remit the matter to the Family Court for a dispositional hearing and dispositionsthereafter on the petition in proceeding No. 1 insofar as asserted against him and thepetition in proceeding No. 2.
However, the Family Court properly dismissed so much of the petition in proceedingNo. 1 as alleged that Christine J.-L. neglected Nyasia C. The hearing evidence did notestablish, by a preponderance of the evidence, that Christine J.-L. failed to provide thechild with adequate medical care so as to impair the child's physical, mental, or emotionalcondition or place the child in imminent danger of such impairment (see Matter of Ariel P. [LisaW.], 102 AD3d 795, 795-796 [2013]; Matter of Terrence P., 38 AD3d 254, 256-257 [2007]).Mastro, J.P., Dickerson, Miller and Maltese, JJ., concur.