IN RE: CANDACE S. (Anonymous). (2007)

In related proceedings pursuant to Family Court Act articles 6, 8 and 10, the father appeals from (1) an amended decision of the Family Court, Dutchess County (Forman, J.), dated August 16, 2005, made after a hearing, (2) an order of fact-finding and disposition of the same court entered October 7, 2005, which, upon the amended decision and after a dispositional hearing, inter alia, found that the father had sexually abused and neglected the child Candace S., and derivatively abused and neglected the children Cedric S. and Dylen S., and found that the additional elements of severe abuse (see Social Services Law § 384–b[8][a] ) were proven and that the children were severely abused children, and awarded custody of the children to the mother and placed the father under the supervision of the Dutchess County Department of Social Services for a period of up to 12 months effective September 6, 2005, requiring him to comply with certain terms and conditions, and (3) an order of protection of the same court also dated October 7, 2005, which directed the father, inter alia, to stay at least 500 feet away from the children to remain in effect until January 12, 2009, with respect to the children Candace S. and Cedric S., and until August 17, 2019, with respect to the child Dylen S.

ORDERED that the appeal from the amended decision dated August 16, 2005, is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the order of fact-finding and disposition entered October 7, 2005, is modified, on the law and the facts, by deleting the provision thereof finding that the additional elements of severe abuse were proven and that the children were severely abused children;  as so modified, the order of fact-finding and disposition is affirmed, without costs or disbursements;  and it is further,

ORDERED that the order of protection is modified, on the law, by deleting the provisions thereof directing that the order of protection remain in effect until January 12, 2009, with respect to the children Candace S. and Cedric S., and until August 17, 2019, with respect to the child Dylen S., and substituting therefor a provision directing that the order of protection remain in effect until October 7, 2006;  as so modified, the order of protection is affirmed, without costs or disbursements.

 The determination by the Family Court that the appellant father had sexually abused his daughter Candace S. is supported by a preponderance of the evidence (see Family Ct. Act § 1046[b];  Matter of Tammie Z., 66 N.Y.2d 1, 494 N.Y.S.2d 686, 484 N.E.2d 1038).   Where, as here, the Family Court is primarily confronted with issues of credibility, its factual findings must be accorded great weight on appeal (see Matter of Sylvia J., 23 A.D.3d 560, 562, 804 N.Y.S.2d 783;  Matter of Cassandra C., 300 A.D.2d 303, 304, 750 N.Y.S.2d 322).   Moreover, in article 10 cases, the Family Court has “considerable discretion to decide whether the child's out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding of abuse” (Matter of Christina F., 74 N.Y.2d 532, 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294;  see Matter of Nicole V., 71 N.Y.2d 112, 124, 524 N.Y.S.2d 19, 518 N.E.2d 914;  Matter of Department of Social Servs. v. Warren D., 195 A.D.2d 460, 461, 600 N.Y.S.2d 132).   Here, where Candace's out-of-court statements were partially corroborated by the out-of-court statements of her brother Cedric (see Family Ct. Act § 1046[a][vi];  Matter of Nicole V., supra;   Matter of Department of Social Servs. v. Waleska M., 195 A.D.2d 507, 510, 600 N.Y.S.2d 464), and validated by the court-qualified expert in psychiatry who treated Candace during her hospitalizations (see Matter of Commissioner of Social Servs. of City of N.Y. v. Edyth W., 210 A.D.2d 328, 328, 620 N.Y.S.2d 402;  Matter of Nassau County Dept. of Social Servs. v. Steven K., 176 A.D.2d 326, 327, 574 N.Y.S.2d 767;  Matter of Linda K., 132 A.D.2d 149, 157, 521 N.Y.S.2d 705), Candace's statements were sufficiently corroborated to support the finding of sexual abuse.

 In addition to its finding of abuse and neglect as to all three children, the Family Court made a further finding that the children were severely abused, as defined in Social Services Law §§ 384–b(8)(a).  “Because such a finding is admissible, and often central, in a subsequent proceeding to terminate parental rights (see Family Ct. Act § 1051[e];  Social Services Law § 384–b[4][e] ), it must be based on clear and convincing evidence (see Family Ct. Act § 1051[e] ), and must include, inter alia, a finding that ‘the agency has made diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate the [parent], when such efforts will not be detrimental to the best interests of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foreseeable future’ ” (Matter of Latifah C., 34 A.D.3d 798, 826 N.Y.S.2d 333, quoting Social Services Law § 384–b[8][a][iv] ).   As no proof of such “diligent efforts” was tendered by the agency here, the Family Court's additional finding of severe abuse cannot stand.

 The appellant is correct that, under the plain language of Family Court Act §§ 1056(1) and (4), it is only where the person is not a relative, “by blood or marriage,” that the duration of an order of protection may extend to the child's 18th birthday (see Matter of Collin H., 28 A.D.3d 806, 809–810, 812 N.Y.S.2d 702).   Since the appellant is the children's biological father, the court was not authorized to extend the order of protection beyond the duration of the order of disposition, one year in this case (see Family Ct. Act §§ 1056[1];  Matter of Sheena D., 8 N.Y.3d 136, 831 N.Y.S.2d 92, 863 N.E.2d 96).