IN RE: CLAMAR G. (Anonymous) (2025)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the subject children, Clamar G. and Iysis G., appeal, and the petitioner separately appeals, from an order of the Family Court, Kings County (Ben Darvil, Jr., J.), dated August 28, 2023.  The order, after a fact-finding hearing, and upon a finding that the petitioner failed to establish that the father and the stepmother neglected the subject children, dismissed the petitions.

ORDERED that the appeal by the child Iysis G. and so much of the appeal by the petitioner as relates to the child Iysis G. are dismissed as academic, without costs or disbursements;  and it is further,

ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.

In October 2019, the petitioner commenced these related neglect proceedings against the father and the stepmother, alleging that they inflicted excessive corporal punishment on the subject children.  Following a fact-finding hearing, the Family Court found that the petitioner failed to establish by a preponderance of the evidence that the children were neglected by the father and the stepmother and dismissed the petitions.  The children appeal, and the petitioner separately appeals.

The child Iysis G. is now over the age of 18 and is no longer subject to the Family Court Act article 10 proceeding relating to her (see id. § 119[c];  Matter of Jermaine T. [Jairam T.], 193 A.D.3d 943, 945, 146 N.Y.S.3d 662).  Thus, the appeal by Iysis G. and so much of the appeal by the petitioner as relates to Iysis G. must be dismissed as academic.

“ ‘In a child neglect proceeding pursuant to Family Court Act article 10, the petitioner must establish by a preponderance of the evidence that the subject child is neglected’ ” (Matter of Veronica M. [Ana M.], 229 A.D.3d 626, 627, 216 N.Y.S.3d 10, quoting Matter of Andrew M. [Brenda M.], 225 A.D.3d 764, 765, 207 N.Y.S.3d 580;  see Family Ct Act § 1046[b][i];  Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840).  “To satisfy this burden, the petitioner may rely upon prior out-of-court statements of the subject children, provided that they are sufficiently corroborated” (Matter of Ashley G. [Eggar T.], 163 A.D.3d 963, 964, 82 N.Y.S.3d 592;  see Family Ct Act § 1046[a][vi];  Matter of Nicole V., 71 N.Y.2d 112, 117–118, 524 N.Y.S.2d 19, 518 N.E.2d 914).  Corroboration means “[a]ny other evidence tending to support the reliability of the previous statements” (Family Ct Act § 1046[a][vi];  see Matter of Christina F., 74 N.Y.2d 532, 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294;  Matter of Nicole V., 71 N.Y.2d at 118, 524 N.Y.S.2d 19, 518 N.E.2d 914).  “ ‘Family Court Judges presented with the issue have considerable discretion to decide whether the child's out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated’ ” (Matter of Kashai E. [Kashif R.E.], 218 A.D.3d 574, 575–576, 192 N.Y.S.3d 560, quoting Matter of Nicole V., 71 N.Y.2d at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914;  see Matter of Treyvone A. [Manuel R.], 188 A.D.3d 1182, 1183, 133 N.Y.S.3d 292).

“ ‘[A] child's recantation of allegations of abuse does not necessarily require [the] Family Court to accept the later statements as true because it is accepted that such a reaction is common among abused children’ ” (Matter of Dayannie I.M. [Roger I.M.], 138 A.D.3d 747, 749, 29 N.Y.S.3d 61 [internal quotation marks omitted], quoting Matter of Tristan R., 63 A.D.3d 1075, 1077, 883 N.Y.S.2d 229).  “ ‘Rather, recantation of a party's initial statement simply creates a credibility issue which the trial court must resolve’ ” (Matter of Kenyana D. [Kenneth D.], 229 A.D.3d 544, 546, 214 N.Y.S.3d 170, quoting Matter of Dayannie I.M. [Roger I.M.], 138 A.D.3d at 749, 29 N.Y.S.3d 61).

Here, the Family Court properly found that the out-of-court statements of the child Clamar G. as to the alleged excessive corporal punishment were not sufficiently corroborated by other nonhearsay evidence.  Contrary to the contentions of the petitioner and Clamar G., under the circumstances of this case, the out-of-court statements of Iysis G. did not constitute reliable corroboration (see Matter of Kashai E. [Kashif R.E.], 218 A.D.3d at 576, 192 N.Y.S.3d 560;  Matter of Gerald W. [Anne R.], 129 A.D.3d 979, 980, 11 N.Y.S.3d 665).  Both Clamar G. and Iysis G. specifically denied the allegations in the petition on multiple occasions (see Matter of Chloe–Elizabeth A.T. [Albert T.], 167 A.D.3d 910, 912, 90 N.Y.S.3d 127;  Matter of Oliver A. [Oguis A.-D.], 167 A.D.3d 867, 868, 90 N.Y.S.3d 142).  In the absence of cross-corroboration of the out-of-court statements, the petitioner failed to present any relevant evidence to reliably corroborate the out-of-court disclosures (see Matter of Ashley G. [Eggar T.], 163 A.D.3d at 965, 82 N.Y.S.3d 592).  The court's determination that the father testified credibly about the incident was adequately supported by the record and is entitled to deference (see Matter of Malachi M.[Mark M.], 164 A.D.3d 794, 795, 83 N.Y.S.3d 150).

Accordingly, the Family Court properly dismissed the petition relating to Clamar G.

BARROS, J.P., IANNACCI, WAN and GOLIA, JJ., concur.