IN RE: STEPHANIE R. (Anonymous). (2005)

In a child protective proceeding pursuant to Family Court Act article 10, the father appeals, as limited by his brief, from so much of an order of fact-finding and disposition of the Family Court, Suffolk County (Spinner, J.), entered October 4, 2004, as, after a hearing, found that he sexually abused Samantha R. and derivatively abused Stephanie R.

ORDERED that the order of fact-finding and disposition is modified, on the law, by deleting the provision thereof finding that the father derivatively abused Stephanie R., and substituting therefor a provision finding that he derivatively neglected Stephanie R.;   as so modified, the order of fact-finding and disposition is affirmed, without costs or disbursements.

 As the father correctly contends, the Family Court erred in refusing to permit the mother to testify about statements made by his child, Samantha R., in which she recanted her allegations of sexual abuse (see Family Ct. Act § 1046[a][vi] ).   However, the error was harmless because the Family Court admitted similar testimony by Samantha's therapist and was aware of the child's efforts to change her account of the incident.   Moreover, that evidence did not undermine the credibility of Samantha's initial statement to such an extent as would require reversal (see Matter of Lisa S. v. William S., 187 A.D.2d 435, 589 N.Y.S.2d 547).   The father's own statement to the police tracked and corroborated Samantha's initial allegations.   Thus, the Family Court was entitled to credit Samantha's corroborated statement to the police, and its finding of abuse should not be disturbed (see Matter of Irene O., 38 N.Y.2d 776, 381 N.Y.S.2d 865, 345 N.E.2d 337;  Matter of Sharonda S., 301 A.D.2d 532, 752 N.Y.S.2d 898).

The Family Court's finding of derivative abuse as to Stephanie R. was supported by the evidence (see Family Ct. Act § 1046[a][i];  Matter of Jessica S., 18 A.D.3d 562, 795 N.Y.S.2d 93;  Matter of Desiree C., 7 A.D.3d 522, 776 N.Y.S.2d 320).   However, as the petition alleged derivative neglect and was not amended in accordance with Family Court Act § 1051(b), the finding of derivative abuse was procedurally improper (see Matter of Shawniece E., 110 A.D.2d 900, 488 N.Y.S.2d 733;  Matter of Terry S., 55 A.D.2d 689, 389 N.Y.S.2d 55).   However, since a finding that Stephanie R. was derivatively neglected by her father was also supported by the evidence (see Matter of Darnell Mc., 230 A.D.2d 733, 645 N.Y.S.2d 881;  Matter of Douglas E., III v. Douglas E., Jr., 191 A.D.2d 694, 595 N.Y.S.2d 800), we modify the order of fact-finding and disposition.