Hyperlawhypertext legal database In re D.M. 138 A.D.3d 856

← Cases

In re D.M.

138 A.D.3d 856 Court N.Y. App. Div. Decision date 2016-04-13 English

Judges Dillon, J.P., Leventhal, Chambers and Barros, JJ., concur.

Contents

Majority

p. 856
In the Matter of D.M. Suffolk County Department of Social Services, Respondent; Ali T., Appellant.
[32 NYS3d 170]

Appeals from (1) a decision of the Family Court, Suffolk County (David Freundlich, J.), dated May 11, 2015, and (2) an order of fact-finding and disposition of that court, also dated May 11, 2015. The order of fact-finding and disposition, after fact-finding and dispositional hearings, found that the father abused the subject child.

Ordered that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,

Ordered that the order of fact-finding and disposition is affirmed, without costs or disbursements.

In September 2014, the subject child, then 10 years old, told a police officer, who was also a school resource officer teaching a course at her school, that her father had been engaging in sexual conduct with her for the past five or six years. Following a hearing, at which a member of the child’s household testified that she had witnessed the abuse on one occasion, the Family Court determined that the petitioner established, by a preponderance of the evidence, that the father had abused the child by subjecting her to sexual conduct as defined in article 130 of the Penal Law (see Family Ct Act § 1012 [e] [iii]). The father appeals.

The petitioner in a child protective proceeding has the

p. 857
burden of proving abuse by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]; Matter of Victoria P. [Victor P.], 121 AD3d 1006 , 1006 [2014]; Matter of Alexis S.G. [Shanese B.], 107 AD3d 799 , 799 [2013]). A child’s out-of-court statements may provide the basis for a finding of abuse if the statements 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 NY2d 112 , 123 [1987]; Matter of Deatrus Amir D. [Astoria D.], 136 AD3d 900 , 901 [2016]; Matter of Nicole G. [Louis G.], 105 AD3d 956 , 956 [2013]). The Family Court has considerable discretion in determining whether a child’s out-of-court statements have been sufficiently corroborated (see Matter of Nicole G. [Louis G.], 105 AD3d at 956 ), and its findings must be accorded deference on appeal where the issue is primarily one of credibility of the witnesses (see Matter of Deatrus Amir D. [Astoria D.], 136 AD3d at 901-902 ; Matter of Jada K.E. [Richard D.E.], 96 AD3d 744 , 745 [2012]).

Here, the record supports the Family Court’s determination that the father abused the child, where the petitioner presented the testimony of an eyewitness to the abuse to corroborate the child’s out-of-court statements (see Matter of Deatrus Amir D. [Astoria D.], 136 AD3d at 902 ). The court’s credibility determinations are supported by the record (see id.; Matter of Hayden C. [Tafari C.], 130 AD3d 924 , 926 [2015]).

Dillon, J.P., Leventhal, Chambers and Barros, JJ., concur.

Cases cited