| Matter of Kyle D. (Dwayne D.) |
| 2016 NY Slip Op 02810 [138 AD3d 835] |
| April 13, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Kyle D., Appellant. Administration forChildren's Services, Appellant; Dwayne D., Respondent. (Proceeding No. 1.) In theMatter of Maya D., Appellant. Administration for Children's Services, Appellant;Dwayne D., Respondent. (Proceeding No. 2.) |
Seymour W. James, Jr., New York, NY (Tamara A. Steckler, Claire V. Merkine, andJudith Stern of counsel), attorney for the children, the appellants Kyle D. and MayaD.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgowand Diana Lawless of counsel), for petitioner-appellant.
Susan Jacobs, New York, NY (Neha Choudary and Maura Keating of counsel), forrespondent.
Appeal from an order of the Family Court, Queens County (Barbara Salinitro, J.),dated March 6, 2015. The order, after a fact-finding hearing and upon a finding that thepetitioner failed to establish that the father abused or neglected Maya D. or derivativelyneglected Kyle D., dismissed the petitions.
Ordered that the order is reversed, on the law and the facts, without costs ordisbursements, the petition is reinstated, it is found that the father abused and neglectedMaya D. and derivatively neglected Kyle D., and the matter is remitted to the FamilyCourt, Queens County, for a dispositional hearing and dispositions thereafter before adifferent Judge.
While the credibility findings of a hearing court are accorded deference (seeMatter of Irene O., 38 NY2d 776, 777 [1975]; Matter of Chanyae S. [Rena W.], 82 AD3d 1247 [2011]),we are free to make our own credibility assessments and, where proper, make a findingof abuse or neglect based upon the record before us (see Matter of Nyasia C. [Christine J.-L.], 137 AD3d 781[2d Dept 2016]; Matter ofChanyae S. [Rena W.], 82 AD3d 1247 [2011]; Matter of Samuel D.-C., 40AD3d 853 [2007]; Matterof Peter R., 8 AD3d 576, 579 [2004]). Contrary to the determination of theFamily Court, the testimony of the petitioner's expert witness, who was an expert in thefield of child sexual abuse, provided sufficient corroboration to support the reliability ofMaya D.'s out-of-court statements regarding her father's sexual abuse of her and, togetherwith the testimony of the [*2]petitioner's caseworker andthe mother, established the allegations in the petition by a preponderance of the evidence(see Family Ct Act § 1046 [a] [vi]; Matter of Elizabeth G.,255 AD2d 1010 [1998]). The allegations of sexual abuse were further corroborated bythe consistency of Maya D.'s out-of-court statements and by the fact that Maya D. hadage-inappropriate knowledge of sexual matters (see Matter of Kimberly CC. v Gerry CC., 86 AD3d 728,730 [2011]; Matter of BrianaA., 50 AD3d 1560 [2008]; Matter of Yorimar K.-M., 309 AD2d 1148,1148-1149 [2003]). Therefore, upon our review of this record, we conclude that thepetitioner satisfactorily demonstrated by a preponderance of the evidence that the fatherabused and neglected Maya D. and derivatively neglected her brother, Kyle D.
In view of our findings of abuse, neglect, and derivative neglect, we remit the matterto the Family Court, Queens County, for a dispositional hearing and dispositionsthereafter. Under the particular circumstances of this case, we deem it appropriate toremit the matter to a different Judge for purposes of disposition. Balkin, J.P., Roman,Maltese and Connolly, JJ., concur.