Admin. for Children's Servs. v. Jose H.C. (In re Amberlyn H.P.)

187 A.D.3d 920

130 N.Y.S.3d 368 (Mem)

In the MATTER OF AMBERLYN H.P. (Anonymous).

Administration for Children's Services, respondent;

v. Jose H.C. (Anonymous), appellant.

2019–13017

Docket No. N-15195-17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 17, 2020

October 14, 2020

Lewis S. Calderon, Jamaica, NY, for appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Devin Slack and Cynthia Kao of counsel; Adam Toobin on the brief), for respondent.

Janet E. Sabel, New York, N.Y. (Dawne E. Mitchell and Judith Stern of counsel), attorney for the child.

ALAN D. SCHEINKMAN, P.J., HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10, the father appeals from an order of fact-finding of the Family Court, Queens County (Emily Ruben, J.), dated October 15, 2019. The order of fact-finding, after a fact-finding hearing, found that the father sexually abused the subject child.

ORDERED that the order of fact-finding is affirmed, without costs or disbursements.

In July 2017, the Administration for Children's Services (hereinafter ACS) filed a petition alleging that the father had sexually abused the subject child. Following a fact-finding hearing, the Family Court issued an order of fact-finding dated October 15, 2019, in which it found that the father had sexually abused the subject child. The father appeals.

At a fact-finding hearing, any determination that a child is an abused or neglected child must be based on a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ; Matter of Jose E. [Jose M.], 176 A.D.3d 1201, 1202, 109 N.Y.S.3d 672 ; Matter of D.S. [Shaqueina W.], 147 A.D.3d 856, 857, 47 N.Y.S.3d 364 ). "Great deference is given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear the testimony, and observe their demeanor" ( Matter of Oliver A. [Oguis A.-D.], 167 A.D.3d 867, 868, 90 N.Y.S.3d 142 ). A child's prior out-of-court statements may provide the basis for a finding of abuse, provided that these hearsay statements are corroborated, so as to ensure their reliability (see Family Ct. Act § 1046[a][vi] ; Matter of Nicole V., 71 N.Y.2d 112, 117–119, 524 N.Y.S.2d 19, 518 N.E.2d 914 ). "Any other evidence tending to support the reliability of the previous statements ... shall be sufficient corroboration"(Family Ct Act § 1046[a][vi] ). The Family Court has considerable discretion in deciding whether a child's out-of-court statements alleging incidents of abuse have been reliably corroborated (see Matter of Nicole V., 71 N.Y.2d at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Matter of Alexis S. [Edward S.], 115 A.D.3d 866, 867, 982 N.Y.S.2d 366 ).

Here, ACS demonstrated by a preponderance of the evidence that the father sexually abused the subject child. The testimony of the petitioner's expert witness provided sufficient corroboration to support the reliability of the out-of-court statements of the subject child alleging abuse (see Matter of Tazya B. [Curtis B.], 180...