IN RE: JARETZY F. (Anonymous). (2025)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the father appeals from an order of fact-finding and disposition of the Family Court, Kings County (Robert D. Hettleman, J.), dated April 9, 2024.  The order of fact-finding and disposition, insofar as appealed from, after fact-finding and dispositional hearings, found that the father sexually abused the subject child Miriam F., and derivatively abused the subject children Jaretzy F., Alma F., and Jeremy F.

ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs of disbursements.

On September 7, 2023, the nonrespondent mother reported to the New York City Police Department (hereinafter the NYPD) that the father had sexually abused the subject child Miriam F. on September 4, 2023.  On September 11, 2023, the Administration for Children's Services (hereinafter ACS) filed four petitions, one as to each child, against the father alleging, inter alia, that he sexually abused Miriam F. and derivatively abused the subject children Jaretzy F., Alma F., and Jeremy F.

After fact-finding and dispositional hearings, the Family Court found that the father sexually abused Miriam F. and derivatively abused the other three children.  The father appeals.

“At a fact-finding hearing 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 Kenyana D. [Kenneth D.], 229 A.D.3d 544, 545, 214 N.Y.S.3d 170 [internal quotation marks omitted];  see Matter of Nyla S. [Jason B.], 224 A.D.3d 691, 692, 205 N.Y.S.3d 167).  “The Family Court Act defines an abused child as, inter alia, a child whose parent commits against him or her a sex offense as defined in article 130 of the Penal Law, or allows such ․ offense to be committed against the child” (Matter of Alajah H. [Brian H.], 234 A.D.3d 759, 760, 224 N.Y.S.3d 154 [internal quotation marks omitted];  see Family Ct Act § 1012(e)(iii);  Matter of Naima E. [Daryl M.], 227 A.D.3d 901, 902, 209 N.Y.S.3d 581).

“Great deference is given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear the testimony, and observe their demeanor” (Matter of Moshae L. [Angela J.], 237 A.D.3d 821, 823, 230 N.Y.S.3d 399 [internal quotation marks omitted]);  see Matter of Malik M. [Taishona M.], 236 A.D.3d 1034, 1037, 229 N.Y.S.3d 234).  “[M]inor inconsistencies in the testimony presented by [a party do] not render such testimony unworthy of belief” (Matter of Destiny R. [Rene G.], 212 A.D.3d 629, 631, 181 N.Y.S.3d 329;  see Matter of Cashmere T. [Andrew S.], 161 A.D.3d 1177, 1178, 77 N.Y.S.3d 477).

“In neglect proceedings, unsworn out-of-court statements of the children may be received and, if properly corroborated, will support a finding of abuse or neglect” (Matter of Nathaniel I.G. [Marilyn A.P.], 227 A.D.3d 806, 807, 210 N.Y.S.3d 486 [alterations and internal quotation marks omitted];  see Family Ct Act § 1046(a)(vi);  Matter of Jazlynn K. [Genesis S.], 231 A.D.3d 952, 954, 219 N.Y.S.3d 725).  “Corroboration means any other evidence tending to support the reliability of the previous statements” (Matter of Nathaniel I.G. [Marilyn A.P.], 227 A.D.3d at 807, 210 N.Y.S.3d 486 [internal quotation marks omitted];  Matter of Alexander S. [Gabriel H.], 224 A.D.3d 907, 909, 206 N.Y.S.3d 341 [internal quotation marks omitted]).

Here, contrary to the father's contention, the mother's testimony, which differed in some respects to her prior statements made to representatives of the NYPD, Emergency Medical Services, and ACS, constituted “minor inconsistencies” that did not render her “testimony unworthy of belief” (Matter of Destiny R. [Rene G.], 212 A.D.3d at 631, 181 N.Y.S.3d 329;  see Matter of Cashmere T. [Andrew S.], 161 A.D.3d at 1178, 77 N.Y.S.3d 477).  Although the mother's testimony as to the time of the incident differed from her prior statements, her statements were consistent that the incident occurred on the morning of September 4, 2023.

Moreover, a preponderance of the evidence adduced at the fact-finding hearing supported the Family Court's finding of abuse.  Miriam F. disclosed the father's sexual abuse of her in a forensic interview, which statements were corroborated by, inter alia, admissions made by the father during a controlled telephone call and the mother's statements and testimony.  Further, the father's abuse of Miriam F. supported the court's finding of derivative abuse as to the other three children since it “demonstrated ․ a fundamental defect in the [father's] understanding of the duties of a person with legal responsibility for the care of children and such an impaired level of judgment as to create a substantial risk of harm for any child in [his] care” (Matter of Esther R.-M.D. [Carry Q.], 232 A.D.3d 738, 741, 221 N.Y.S.3d 201;  see Matter of Nyla S. [Jason B.], 224 A.D.3d at 693, 205 N.Y.S.3d 167).

The father's remaining contention is without merit.

DUFFY, J.P., MILLER, LANDICINO and HOM, JJ., concur.