Summary
This New York Appellate Division decision reviews a Family Court order affirming findings that Kimmarley B. sexually abused two children and derivatively abused a third. The court addresses the sufficiency of evidence supporting the fact-finding, specifically focusing on the corroboration of the children's out-of-court statements under Family Court Act § 1046(a)(vi). The appellate court concludes that the Family Court's determinations were supported by a preponderance of the evidence and properly exercised its discretion, ultimately affirming the order of disposition without costs.
Topics
Practice areas
Questions Presented
- Whether the Family Court’s finding of sexual abuse was supported by a preponderance of the evidence.
- Whether the children’s out‑of‑court statements were sufficiently corroborated under Family Court Act § 1046(a)(vi).
- Whether the appellant’s constitutional challenge to Family Court Act § 1046(a)(vi) was preserved for appellate review.
Holdings
- The appellate court affirmed that the Family Court’s finding was supported by a preponderance of the evidence.
- The appellate court held that the Family Court properly exercised its discretion in finding the statements sufficiently corroborated.
- The challenge was deemed unpreserved and therefore not subject to appellate review.
Key quotations
“"At a fact-finding hearing in a child protective proceeding 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"”
“"Corroboration is not required because statements of children are generally unreliable but because the out-of-court statements are hearsay and Family Court Act § 1046(a)(vi) requires some further evidence to establish their reliability"”
Factual background
Kimmarley B. was alleged to have sexually abused children Jacei R. and Jaleea H., and derivatively abused child Giovanni F. The Family Court, after a fact‑finding hearing, found the allegations supported by a preponderance of the evidence and affirmed his legal responsibility for the children’s care.
Procedural history
The Administration for Children's Services filed child protective proceedings under Family Court Act article 10 alleging sexual abuse by Kimmarley B. The Family Court held a fact‑finding hearing, found Kimmarley B. responsible for the children’s care and concluded he sexually abused Jacei R., Jaleea H., and derivatively abused Giovanni F. The order of disposition was appealed to the Appellate Division, Second Department.