Matter of E.D. (Dukens D.)

Summary

The Appellate Division, First Department unanimously affirmed a Family Court order finding respondent neglected the subject children. The court held that a half-sibling's out-of-court statements were admissible and corroborated, that respondent was a person legally responsible for the child, and that the evidence supported the neglect finding based on domestic violence occurring in the children's proximity.

Holdings

1. The half-sibling's out-of-court statements were admissible under Family Court Act § 1046(a)(vi) because they were corroborated by the mother's testimony and other evidence.
2. The fact that the declarant was not a subject of the neglect proceeding did not render the declarant's out-of-court statements inadmissible.
3. The statements were not inadmissible on the ground that respondent was not legally responsible for the half-sibling because the undisputed evidence established an inference of substantial familiarity between respondent and the child.
4. A preponderance of the evidence supported the finding that respondent neglected the subject children.
5. There was no basis to disturb Family Court's credibility determinations, including its determination that respondent was the aggressor.

Questions Presented

1. Whether the half-sibling's out-of-court statements concerning the incident were admissible under Family Court Act § 1046(a)(vi) when corroborated by other evidence.
2. Whether the half-sibling's statements were inadmissible because the half-sibling was not a subject of the neglect proceeding.
3. Whether the statements were inadmissible because respondent was not a person legally responsible for the half-sibling under Family Court Act § 1012(g).
4. Whether the evidence established by a preponderance that respondent neglected the subject children.
5. Whether Family Court's credibility determinations and finding that respondent was the aggressor should be disturbed on appeal.

Disposition

affirmed