Admin. for Children's Servs. v. Juan T. (In re Ashley A.F.)

181 A.D.3d 882

119 N.Y.S.3d 881 (Mem)

In the MATTER OF ASHLEY A.F. (Anonymous).

Administration for Children's Services, Respondent;

v. Juan T. (Anonymous), Appellant.

2018-13262

Docket No. N-9976-17

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

Submitted—February 10, 2020

March 25, 2020

Carol Lipton, Brooklyn, NY, for appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Scott Shorr and Kevin Osowski of counsel), for respondent.

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

RUTH C. BALKIN, J.P., COLLEEN D. DUFFY, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

ORDERED that the order of disposition is affirmed, without costs or disbursements.

From 2012 through 2015, the subject child, Ashely A. F., resided with her mother and Juan T., who was her stepfather. In May 2017, the Administration for Children's Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10, alleging, inter alia, that Juan T., a person legally responsible for Ashely A. F., sexually abused her. Following a fact-finding hearing, in an order of fact-finding dated October 22, 2018, the Family Court found, inter alia, that Juan T. sexually abused Ashely A.F. The court also issued an order of disposition releasing Ashely A.F. to the custody of the nonrespondent mother. Juan T. 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’ " ( Matter of Jose E. [Jose M.], 176 A.D.3d 1201, 1202, 109 N.Y.S.3d 672, quoting 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 Jose E. [Jose M.], 176 A.D.3d at 1202, 109 N.Y.S.3d 672, quoting Matter of Oliver A. [Oguis A.-D.], 167 A.D.3d 867, 868, 90 N.Y.S.3d 142 ).

Here, ACS established by a preponderance of the evidence that Juan T. sexually abused Ashely A.F. (see Family Ct Act §§ 1012[e][iii] ; 1046[b][i]; Matter of Jose E. [Jose M.], 176 A.D.3d at 1202, 109 N.Y.S.3d 672 ). Ashely A. F.'s testimony as to multiple instances of abuse by Juan T. was sufficient to support a finding of abuse (see Matter of M.W. [Mohammad W.], 172 A.D.3d 879, 881, 100 N.Y.S.3d 287 ). Contrary to the contention of Juan T., any inconsistencies between Ashely A. F.'s testimony and her out-of-court statements did not render such testimony unworthy of belief (see Matter of Jose E. [Jose M.], 176 A.D.3d at 2013, 108 N.Y.S.3d 921 ).

Contrary to Juan T.'s contention, he was not denied the effective assistance of counsel at the fact-finding hearing. "An attorney representing a client is entitled to make strategic and tactical decisions concerning the conduct of trials" (see Matter of Vincent N.B. [Gregory B.], 173 A.D.3d 855, 856, 100...