IN RE: JACEI R. (Anonymous). (2025)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, Kimmarley B. appeals from an order of disposition of the Family Court, Kings County (Robert D. Hettleman, J.), dated September 15, 2023.  The order of disposition, insofar as appealed from, was entered upon an order of fact-finding of the same court (Michael R. Milsap, J.) dated June 28, 2023, made after a fact-finding hearing, finding that Kimmarley B. sexually abused the children Jaleea H. and Jacei R. and derivatively abused the child Giovanni F.

ORDERED that the order of disposition is affirmed insofar as appealed from, without costs or disbursements.

The Administration for Children's Services commenced these related proceedings pursuant to Family Court Act article 10, alleging that Kimmarley B. (hereinafter the appellant) sexually abused the children Jaleea H. and Jacei R. and derivatively abused the child Giovanni F. After a fact-finding hearing, the Family Court found that the appellant was a person legally responsible for the children's care and that he sexually abused Jaleea H. and Jacei R. and derivatively abused Giovanni F.

“ ‘At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected’ ” (Matter of Tony C. [Kristine S.-Jadiel L.], 226 A.D.3d 1008, 1010, 209 N.Y.S.3d 559, quoting Matter of Ciniya P. [Omar S.W.], 217 A.D.3d 954, 955, 192 N.Y.S.3d 219).  A petitioner may rely upon prior out-of-court statements of the child, provided that they are sufficiently corroborated (see Family Ct Act § 1046[a][vi];  Matter of Alajah H. [Brian H.], 234 A.D.3d 759, 224 N.Y.S.3d 154).  “Corroboration is not required because statements of children are generally unreliable but because the out-of-court statements are hearsay and Family Court Act § 1046(a)(vi) requires some further evidence to establish their reliability” (Matter of Janiyah S. [Pedro H.], 226 A.D.3d 909, 911, 210 N.Y.S.3d 186).  “Family Court Act § 1046(a)(vi) states a broad flexible rule providing that out-of-court statements may be corroborated by [a]ny other evidence tending to support their reliability” (Matter of Tony C. [Kristine S.-Jadiel L.], 226 A.D.3d at 1011, 209 N.Y.S.3d 559 [internal quotation marks omitted]).

Here, the Family Court's finding that the appellant sexually abused Jaleea H. and Jacei R. and derivatively abused Giovanni F. is supported by a preponderance of the evidence (see Matter of Ciniya P. [Omar S.W.], 217 A.D.3d at 955, 192 N.Y.S.3d 219).  Contrary to the appellant's contention, the court providently exercised its discretion in determining that the children's out-of-court statements were sufficiently corroborated (see Matter of Alajah H. [Brian H.], 234 A.D.3d 759, 224 N.Y.S.3d 154;  Matter of Emily R. [Magali M.C.], 226 A.D.3d 794, 795, 209 N.Y.S.3d 459).

Contrary to the appellant's contention, the evidence adduced at the fact-finding hearing demonstrated that the appellant was a person legally responsible for the children's care (see Matter of Tony C. [Kristine S.-Jadiel L.], 226 A.D.3d at 1010, 209 N.Y.S.3d 559; Matter of Marjorie P.[Gerardo M.P.], 221 A.D.3d 818, 820–821, 198 N.Y.S.3d 215).

The appellant's contention regarding the constitutionality of Family Court Act § 1046(a)(vi) is unpreserved for appellate review (see Matter of Kimbrough v. Murphy, 156 A.D.3d 640, 642, 66 N.Y.S.3d 288;  Matter of Fuchs v. Itzkowitz, 120 A.D.3d 682, 683, 991 N.Y.S.2d 324).

The appellant's remaining contentions are either without merit or not properly before the Court.

BRATHWAITE NELSON, J.P., CHRISTOPHER, WAN and GOLIA, JJ., concur.