IN RE: Iyonte G. (Anonymous).  Administration for Children's Services (2011)

Submitted-November 1, 2010

DECISION & ORDER

Angella S. Hull, Jamaica, N.Y., attorney for the children Iyonte G. and Nyasia D.

Christian P. Myrill, Jamaica, N.Y., attorney for the children Jacob R., Charlie R., and Chandler E.

In related child protective proceedings pursuant to Family Court Act article 10, Charles J.R. appeals from an order of disposition of the Family Court, Queens County (Richroath, J.), dated May 29, 2009, which, upon a fact-finding order of the same court dated January 5, 2009, finding that he sexually abused the child Iyonte G., and derivatively abused the remaining five subject children, directed, inter alia, that he have no contact with his stepchildren Iyonte G. and Nyasia G., and no contact with his biological children except agency-supervised visitation.   Justice Eng has been substituted for the late Justice Fisher (see 22 NYCRR 670.1[c] ).

ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the petitions are denied, and the proceedings are dismissed.

The instant controversy arises from an out-of-court statement made by Iyonte G., then eight years old, to her mother, Lynn G., to the effect that her stepfather put his penis in her mouth and made a crude and obscene comment with respect to what he wanted Iyonte G. to do to him.   The Administration for Children's Services (hereinafter the petitioner) filed a sexual abuse petition against the stepfather for sexually abusing Iyonte G., and derivative sexual abuse petitions with regard to Iyonte G.'s sister, Nyasia G., then six years old, and the other subject children, who are the stepfather's biological children.

In a child protective proceeding, the petitioner has the burden of proving abuse or neglect by a preponderance of the evidence (see Family Ct Act § 1046[b][i] ).   Pursuant to Family Court Act § 1046(a)(vi), “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect.”   The out-of-court statements may be corroborated by “[a]ny other evidence tending to support the reliability of the previous statements” (Family Ct Act § 1046[a] [vi] ).   However, “there is a threshold of reliability that the evidence must meet” (Matter of Danielle L., 307 A.D.2d 294, 295;  see Matter of Kayla F., 39 AD3d 983, 984;  Matter of Stephen GG., 279 A.D.2d 651, 652;  Matter of Zachariah VV., 262 A.D.2d 719).   Moreover, “repetition of an accusation by a child does not corroborate the child's prior account of it” (Matter of Francis Charles W.,, 71 N.Y.2d 112, 124;  see Matter of Christina F., 74 N.Y.2d 532, 537;  Matter of Kayla F., 39 AD3d at 984;  Matter of Danielle L., 307 A.D.2d at 295;  Matter of Jared XX., 276 A.D.2d 980, 981).

Under the facts of this case, the Family Court erred in finding that Iyonte G.'s out-of-court statements were sufficiently corroborated.   While the Family Court could properly draw a strong inference against the stepfather for failing to testify (see Matter of Joseph C., 297 A.D.2d 673;  Matter of Jenny N., 262 A.D.2d 951), “that inference cannot establish corroboration where it otherwise does not exist” (Matter of Kayla F., 39 AD3d at 985).

Since the finding of derivative abuse regarding the remaining five children was based on the abuse determination with respect to Iyonte G., that finding, too, is unsupported by the evidence (see Matter of Kayla F., 39 AD3d 983;  Matter of Kymberlee P., 231 A.D.2d 526, 527).

In the absence of sufficient corroboration, the petitions must be dismissed.

FLORIO, J.P., ENG, LEVENTHAL and HALL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court