IN RE: J.M. and Others (2025)

Order of disposition, Family Court, Bronx County (Gigi N. Parris, J.), entered on or about November 4, 2022, to the extent it brings up for review an order of fact-finding, same court (Tracey A. Bing, J.), entered on or about September 2, 2022, which found that respondent mother abused and neglected the subject children, J.M. and J.D.M., and derivatively abused and neglected M.M. and L.C., unanimously affirmed, without costs.  Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

Family Court properly concluded, based on the record as a whole, that the mother abused J.M and J.D.M by attempting to prostitute them (Family Ct Act §§ 1012[e][iii][B];  1046[b][i]).  A parent abuses a child when they allow, permit, or encourage such child to engage in an act described in Penal Law § 230.30, which proscribes compelling a person to engage in prostitution by force or intimidation, or profiting from prostitution of a person younger than 18 years old (see Family Ct Act § 1012[e][iii][B];  Penal Law § 230.30[1], [2]).  Here, the record showed that on two separate occasions, the mother took J.M. and J.D.M. individually to the home of unfamiliar men, accepted money from the men, instructed the children to lie down on a bed, and then left.  In both cases, the men attempted to have sex with the child upon the mother's departure.

J.D.M.’s statements were independently admissible, as she first made a disclosure to her treating therapist during a therapy appointment, which constituted an exception to the rule against hearsay (see Matter of A.M. [Adgraile E.], 233 A.D.3d 481, 481, 222 N.Y.S.3d 437 [1st Dept. 2024]).  Even if J.D.M.’s statements required corroboration, Family Court providently exercised its discretion in determining that J.D.M.’s out-of-court statements made to the agency caseworker, in which she detailed the sexual abuse, were sufficiently corroborated by her mental health records and by the record, including J.M.’s and the caseworker's testimony (see Matter of Corey J. [Corey J.], 157 A.D.3d 449, 450, 68 N.Y.S.3d 443 [1st Dept. 2018]).

J.M.’s testimony, which the court deemed credible, was also sufficient to establish that the mother attempted to prostitute J.M. (see Matter of J.M. [Felipe A.], 233 A.D.3d 586, 586, 223 N.Y.S.3d 83 [1st Dept. 2024]).  J.M. testified in great detail about similar conduct by the mother when J.M. was in high school.  The testimony included specific details, such as the name of the man, the location of his home, J.M.’s observation of him giving money to the mother, and the struggle J.M. had with him over their phone before he tried to have sex with her.  Additionally, J.M.’s testimony corroborated J.D.M.’s out-of-court statements describing the mother's nearly identical conduct when each child was approximately the same age (see Matter of A.P. [M.P.], 183 A.D.3d 535, 536, 124 N.Y.S.3d 32 [1st Dept. 2020]).

Family court, which explicitly opined that the issue of credibility was a “central theme in this matter,” had the benefit of observing the witnesses’ demeanor over a three-year period, and there is no basis for disturbing its credibility determinations, including its assessment of J.M.’s testimony and its finding that the mother's testimony was not credible (see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975];  Matter of C.F. [Carlos F.], 220 A.D.3d 506, 506–507, 197 N.Y.S.3d 508 [1st Dept. 2023], lv denied 41 N.Y.3d 901, 2024 WL 629778 [2024]).

The mother does not challenge Family Court's finding that she neglected J.D.M. by failing to ensure that the child received ongoing mental health treatment, which led to her psychiatric hospitalization following an aborted suicide attempt in 2017 (see Matter of Ivania L.V. [Liz C.], 139 A.D.3d 542, 542, 30 N.Y.S.3d 556 [1st Dept. 2016]).  Moreover, the evidence supports the court's finding that the mother also neglected the children by failing to provide them with adequate food, clothing, and shelter (see Matter of Amondie T. [Karen S.], 107 A.D.3d 498, 499, 968 N.Y.S.2d 20 [1st Dept. 2013];  Matter of Elijah J. [Yvonda M.], 105 A.D.3d 449, 450, 963 N.Y.S.2d 77 [1st Dept. 2013]).  Both J.M. and J.D.M. separately reported to the ACS caseworker, and J.M. also testified to the mother leaving them alone for days at a time without adequate food and failing to provide them with adequate clothing and hygiene products.

The finding of derivative abuse and neglect against the mother as to M.M. and L.C. was appropriate.  Her behavior evinced such an impaired level of judgment as to create a substantial risk of harm to the younger children (see Matter of Gabriel R. [Jose R.], 188 A.D.3d 501, 502, 134 N.Y.S.3d 346 [1st Dept. 2020]).