In the Matter of Jeshaun R. (anonymous).Admin. For Children's Serv.

• Decision Date: 07 June 2011
• Citation: 85 A.D.3d 798,925 N.Y.S.2d 533,2011 N.Y. Slip Op. 05074
• Parties: In the Matter of JESHAUN R. (Anonymous).Administration for Children's Services, appellant;Ean R. (Anonymous), respondent. (Proceeding No. 1)In the Matter of Kayla R. (Anonymous).Administration for Children's Services, appellant; Ean R. (Anonymous), respondent. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 798

925 N.Y.S.2d 533

2011 N.Y. Slip Op. 05074

In the Matter of JESHAUN R. (Anonymous).Administration for Children's Services, appellant;Ean R. (Anonymous), respondent. (Proceeding No. 1)In the Matter of Kayla R. (Anonymous).Administration for Children's Services, appellant; Ean R. (Anonymous), respondent. (Proceeding No. 2).

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

June 7, 2011.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for appellant.Kimberly Mosolf and Jessica Marcus, Brooklyn, N.Y., for respondent.Steven Banks, New York, N.Y. (Tamara A. Steckler and Amy Hausknecht of counsel), attorney for the children.JOSEPH COVELLO, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

In two related child protective proceedings pursuant to Family Court Act article 10, the Administration for Children's Services appeals from an amended order of the Family Court, Kings County (Beckoff, J.), dated December 20, 2010, which, after a fact-finding hearing, dismissed the petitions alleging that the respondent father, Ean R., abused the child Jeshaun R., and derivatively abused the child Kayla R.

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

The Administration for Children's Services (hereinafter ACS) failed to establish by a preponderance of the evidence that the child Jeshaun R. was abused by the father ( see Family Ct. Act § 1046[b][i] ). A child's out-of-court statements may form the basis for a finding of abuse if they are sufficiently corroborated by other evidence tending to support the reliability of the child's statements ( see Family Ct. Act § 1046[a][vi]; Matter of Nicole V., 71 N.Y.2d 112, 123, 524 N.Y.S.2d 19, 518 N.E.2d 914; Matter of Frank F., 12 A.D.3d 601, 784 N.Y.S.2d 386; Matter of Khadryah H., 295 A.D.2d 607, 744 N.Y.S.2d 206). There is a threshold of reliability that the evidence must meet ( see Matter of Iyonte G. [ Charles J.R.], 82 A.D.3d 765, 918 N.Y.S.2d 519; Matter of Danielle L., 307 A.D.2d 294, 762 N.Y.S.2d 285).

A child's out-of-court statements regarding abuse can be corroborated by a sibling's out-of-court statements in which he or she described similar incidents of abuse ( see Matter of Tristan R., 63 A.D.3d 1075, 883 N.Y.S.2d 229; Matter of Joshua B., 28 A.D.3d 759, 814 N.Y.S.2d 210; Matter of Latisha W., 221 A.D.2d 645, 634 N.Y.S.2d 510). The reliability of statements made by siblings can be weighed by comparing them ( see Matter of Nicole V., 71 N.Y.2d at 124, 524 N.Y.S.2d 19, 518 N.E.2d 914).

The Family Court has considerable discretion in deciding whether a child's out-of-court statements describing incidents of abuse have been reliably corroborated ( id. at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914; see Matter of Tristan R., 63 A.D.3d 1075, 883 N.Y.S.2d 229; Matter of Candace S., 38 A.D.3d 786, 832 N.Y.S.2d 612; Matter of Commissioner of Social Servs. v. Lorenzo M., 239 A.D.2d 498, 657 N.Y.S.2d 760). Where, as here, the Family Court is primarily confronted with issues of credibility, its factual findings must be accorded great weight on appeal ( see Matter of Candace S., 38 A.D.3d 786, 832 N.Y.S.2d 612; Matter of Sylvia J., 23 A.D.3d 560, 804 N.Y.S.2d 783).

Here, the record as a whole does not support a finding of abuse. Jeshaun R.'s out-of-court statements were insufficiently corroborated by other evidence tending to support the reliability of her statements. The statements of Kayla R., Jeshaun R.'s sister, were insufficiently reliable to corroborate Jeshaun's statements. The statements of the subject children did not consistently and independently describe the alleged sexual acts in detail ( see Matter of Nicole V., 71 N.Y.2d at 124, 524 N.Y.S.2d 19, 518 N.E.2d 914;

[925 N.Y.S.2d 535 , 85 A.D.3d 800]

Matter of Tristan R., 63 A.D.3d 1075, 883 N.Y.S.2d 229; Matter of Kelly F., 206 A.D.2d 227, 621 N.Y.S.2d 698). Kayla did not independently provide any detail as to any particular incident of abuse ( see Matter of Peter G., 6 A.D.3d 201, 774 N.Y.S.2d 686).

Besides the out-of-court statements of Kayla, there is no evidence tending to corroborate Jeshaun's out-of-court statements. Jeshaun's medical records do not corroborate her out-of-court statements, particularly her statements that her father had had sexual intercourse with her ( cf. Matter of Nicole V., 71 N.Y.2d at 120, 524 N.Y.S.2d 19, 518 N.E.2d 914; Matter of Frank F., 12 A.D.3d 601, 784 N.Y.S.2d 386; Matter of Katrina W., 171 A.D.2d 250, 255, 575 N.Y.S.2d 705, cert. denied sub nom. Roslyn W. v. Suffolk County Dept. of Social Services, 506 U.S. 876, 113 S.Ct. 217, 121 L.Ed.2d 156; Matter of Tyson G., 144 A.D.2d 673, 534 N.Y.S.2d 1023).

Furthermore, contrary to ACS's contention, the father's testimony did not contain an admission or statement against interest ( cf. Matter of Nicole V., 71 N.Y.2d 112, 524 N.Y.S.2d 19, 518 N.E.2d 914; Matter of Dave D. [ Jean D.], 71 A.D.3d 673, 894 N.Y.S.2d 894; Matter of Tyson G., 144 A.D.2d 673, 534 N.Y.S.2d 1023; Matter of Margaret W., 83 A.D.2d 557, 441 N.Y.S.2d 17). An intent...