In re Tristan R.
Ordered that the dispositional order is reversed, on the law and the facts, without costs or disbursements, the fact-finding order is vacated, the petitions are granted, findings are made that the respondent Luis R. abused and neglected the children Sarah R. and Joseph G., that the respondent Lillian G. neglected the children Sarah R. and Joseph G., and that the respondents derivatively neglected the child Tristan R., the matter is remitted to the Family Court, Kings County, for a dispositional hearing in accordance herewith, and the temporary order of protection dated June 19, 2008, is continued pending that hearing.
In a fact-finding hearing conducted pursuant to
“It is well established that the out-of-court statements of siblings may properly be used to cross-corroborate one another” (Matter of Latisha W., 221 AD2d 645, 645 [1995]). Here, the evidence presented at the hearing established that in 2002 then
Although the children vaguely recanted their statements both out-of-court and in court, “[a] child‘s recantation of allegations of abuse does not necessarily require [the] Family Court to accept the later statements as true because it is accepted that such a reaction is common among abused children” (Matter of Kayla N., 41 AD3d 920, 922 [2007] [citations omitted]; see Matter of Akia KK., 282 AD2d 839, 841 [2001]; Matter of Lisa S. v William S., 187 AD2d 435 [1992]; see generally Matter of Allison B., 41 AD3d 842, 843 [2007]; Matter of Shavar B., 7 AD3d 619, 620 [2004]). Rather, “recantation of a party‘s initial statement simply creates a credibility issue which the trial court must resolve” (Matter of Kayla N., 41 AD3d at 922 [citation omitted]).
Here, the Family Court found Sarah R.‘s vague and often incredible testimony unhelpful in determining whether her initial statements or recantations were the truth, but found that Joseph G. credibly testified. While the Family Court‘s finding in that regard generally is entitled to deference, this Court is free to make its own credibility assessments (see Matter of Samuel D.-C., 40 AD3d 853 [2007]). We find both Sarah R.‘s and Joseph G.‘s testimony recanting their earlier statements to be largely incredible (see Matter of Caitlyn U., 46 AD3d 1144, 1146-1147 [2007]) and that their respective vague recantations did not undermine the credibility of their initial accounts to such an extent as to require dismissal of the proceedings (see Matter of Lisa S. v William S., 187 AD2d at 435), particularly in light of evidence suggesting various reasons why they may have untruthfully recanted (see Matter of Caitlyn U., 46 AD3d at 1146-1147; Matter of Kayla N., 41 AD3d at 922-923; Matter of Akia KK., 282 AD2d at 841). Furthermore, the detailed and explicit nature of each child‘s description of the father‘s sexual conduct, each of which was consistent with the other, enhances
While the Family Court has considerable discretion in the first instance to determine if a child‘s out-of-court statements have been reliably corroborated, and whether the record as a whole supports a finding of abuse and/or neglect, (see Matter of Department of Social Servs. v Waleska M., 195 AD2d at 509-510), here, viewing the credible evidence as a whole, together with the negative inference that the Family Court should have drawn based on the father‘s unexplained failure to return to court as scheduled for cross-examination (see generally Matter of Rosy S., 54 AD3d 377, 378 [2008]), we find it sufficient to establish, by a preponderance of the evidence, that the father abused and neglected Sarah R. and Joseph G. (see
Fisher, J.P., Florio, Covello and Dickerson, JJ., concur.