Matter of Imman H.
2008 NY Slip Op 02842 [49 AD3d 879]
March 25, 2008
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 14, 2008

In the Matter of Imman H., a Child Alleged to be Neglected. Administration for Children's Services, Respondent; Diane H.-A., Appellant, et al., Respondent.

[*1] Elliot Green, Brooklyn, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Ronald E. Sternberg and Julie Steiner of counsel), for petitioner-respondent.

Steven Banks, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel), attorney for the child.

In a proceeding pursuant to Family Court Act article 10, the mother appeals from stated portions of an order of disposition of the Family Court, Kings County (Lim, J.), dated February 21, 2007, which, after a hearing, and upon an order of fact-finding of the same court dated September 20, 2006, finding that the subject child was neglected by the mother, inter alia, placed the child in the care of the Commissioner of the Kings County Department of Social Services.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

On July 7, 2005 a petition was filed alleging that the subject child was emotionally neglected by her parents, in that they made her witness the abuse of her uncle and participate in the disposal of the uncle's dismembered corpse. At the fact-finding hearing, the petitioner's evidence included the child's out-of-court statements to a detective, the detective's testimony that the uncle's remains were found at the location identified by the child, and a psychologist's testimony that the child exhibited symptoms of post-traumatic stress disorder. The court found that the child was [*2]emotionally neglected and, inter alia, placed her in the care and custody of the Commissioner of the Kings County Department of Social Services. On appeal, the mother argues that the court erred in granting the motion of the attorney for the child to quash her subpoena to have the child testify at the fact-finding hearing and in denying her motions to have the child's mental health records entered into evidence.

Family Court Act § 1046 (a) (vi) specifically provides that "[t]he testimony of the child shall not be necessary to make a fact-finding of abuse or neglect." A child's out-of-court statements relating to an allegation of neglect may, if adequately corroborated by evidence tending to establish their reliability, support a finding of neglect (see Family Ct Act § 1046 [a] [vi]; Matter of Christopher L., 19 AD3d 597 [2005]; Matter of Khadryah H., 295 AD2d 607, 608 [2002]). "Family Court Judges . . . have considerable discretion to decide whether the child's out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding of [neglect]" (Matter of Nicole V., 71 NY2d 112, 119 [1987]; see Matter of Candace S., 38 AD3d 786, 787 [2007]; Matter of Khadryah H., 295 AD2d at 608).

Here, the child's out-of-court statements were corroborated by the testimony of a detective and the testimony and report of the child's treating psychologist. That evidence, together with a negative inference drawn from the appellant's failure to testify, was sufficient to support the court's finding of neglect. Under the circumstances, and based on the evidence of the potential psychological harm that testifying would cause to the child, the court providently exercised its discretion in granting the motion of the attorney for the child to quash the mother's subpoena to compel the child to testify (see Matter of Christopher L., 19 AD3d 597 [2005]; see also Matter of Karen Patricia G., 44 AD3d 658 [2007]).

After an in camera inspection, the court providently exercised its discretion in denying the mother's motions for production of the child's psychiatric and social work treatment records from various institutions because the mother failed to demonstrate that the records were needed for the preparation of her case (see Family Ct Act § 1038 [d]). Mastro, J.P., Covello, Dickerson and Eng, JJ., concur.