Rosemary P., Respondent-Appellant. v. << (2000)

 “It is well settled that a finding that a child has been abused or neglected pursuant to article 10 of the Family Court Act must be supported by a preponderance of the evidence” (Matter of Stephanie B., 245 A.D.2d 1062, 667 N.Y.S.2d 174;  see, Family Ct. Act § 1046[b][i];  Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038).   Family Court's findings of abuse with respect to Jennifer and Lisa, neglect with respect to Erica and derivative neglect with respect to Erica and Peter are supported by a preponderance of the evidence.  “[W]here, as here, the hearing court was confronted primarily with issues of credibility, its factual findings must be accorded great weight” (Matter of New York City Dept. of Social Servs. v. Elena A., 194 A.D.2d 608, 609, 599 N.Y.S.2d 66;  see, Machukas v. Wagner, 246 A.D.2d 840, 841, 667 N.Y.S.2d 817, lv. denied 91 N.Y.2d 813, 674 N.Y.S.2d 278, 697 N.E.2d 179).   The conflicting and inconsistent statements of the children merely presented credibility issues for the court to resolve (see, Matter of Kaitlyn R., 267 A.D.2d 894, 897, 700 N.Y.S.2d 533;  Matter of Nicole T., 178 A.D.2d 849, 849-850, 577 N.Y.S.2d 906).   Petitioner presented evidence that respondent knew that Jennifer and Lisa had been sexually abused by respondent's boyfriend and did nothing to prevent it (see, Family Ct. Act § 1012[e][iii];  Matter of Lynelle W., 177 A.D.2d 1008, 578 N.Y.S.2d 313;  Matter of Tania J., 147 A.D.2d 252, 259, 543 N.Y.S.2d 47).   That evidence also supports the finding of derivative neglect with respect to Erica and Peter in that “the ‘impaired level of parental judgment’ * * * shown by respondent's behavior created a substantial risk to [those children]” (Matter of Kaitlyn R., supra, at 897, 700 N.Y.S.2d 533, quoting Matter of Daniella HH., 236 A.D.2d 715, 716, 654 N.Y.S.2d 200;  see, Matter of Falcon EE., 269 A.D.2d 711, 713, 703 N.Y.S.2d 569).   The court further found that Erica was compelled to witness respondent and her boyfriend engaging in inappropriate sexual behavior, which is sufficient to establish neglect (cf., Matter of Linda E., 143 A.D.2d 904, 908, 533 N.Y.S.2d 542).

We note that, in the recitals in the orders of fact finding and disposition, Erica is included as an abused child rather than a neglected child.   It is clear from the court's extensive oral fact finding that the recitals are erroneous, and we therefore modify the orders of fact finding and disposition in each appeal by vacating the seventh paragraph and substituting therefor the following:  “The Court having found that facts sufficient to sustain the petition have been established, and having found that the children Jennifer C. and Lisa C. are ‘abused children’ as that term is defined in section 1012(e) of the Family Court Act and that the children Erica C. and Peter C. are ‘neglected children’ as that term is defined in section 1012(f) of the Family Court Act”.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: