Matter of S.D. (K.E.D.)

Family Court, Bronx County

Decided on April 13, 2026

File No. XXXXX

Angel Cruz, J.

After a fact-finding hearing, at issue is whether a ten-year-old'sFN1 out of court statements are sufficiently corroborated to render them reliable and whether Respondent's self-defense claim excuses her conduct. This court finds the child's out of court statements are sufficiently corroborated by the negative inference flowing from Respondent's assertion of her 5th Amendment privilege in response to questions directly at issue, and this Court rejects Respondent's self-defense claim based on the totality of the facts and circumstances. This Court finds Respondent's actions constitute neglect within the meaning of FCA §1012.

On September 17, 2025, this case came in on "intake" and appeared before Bronx Family Court Judge Karen Cortes. The court then remanded the subject child to the custody of the commissioner based on the allegations that on September 4, 2025, Respondent was arrested in Saratoga Springs for assault and weapons related offenses. On September 16, 2025, Respondent was released from Police custody.

The filed sworn neglect petition alleged that the Respondent, K. E. D., failed to provide the subject child, S.D., with proper supervision or guardianship in that Respondent was previously adjudicated neglectful on January 23, 2020, in the Bronx County Family Court by the Honorable David Kaplan, on behalf of the subject child and subject child's sibling, J.A., pursuant to docket numbers NN-XXXXX-1/19 by leaving the children with an inappropriate caretaker and in that Respondent suffers from an untreated mental illness to the extent it impacts her ability to care for the children. According to the same, the children were placed with the Commissioner of ACS at disposition. The subject child S.D. remained in care until her final discharge on or about February 8, 2024. According to Bronx County Family Court records, the Respondent mother's rights to the subject child's sibling J.A. were terminated and the child was freed for adoption on or about March 10, 2025, pursuant to docket B-XXXXX-24.

b. According to S.D., on or about September 3, 2025, while delivering Door Dash with [*2]Respondent, Respondent slashed her ex-boyfriend's car tires and left. According to S.D., the next day subject child and Respondent returned to the apartment complex and encountered her Respondent's ex-boyfriend. S.D. reports that Respondent denied slashing her ex-boyfriend's tires when confronted and Respondent fought her ex-boyfriend's new girlfriend. S.D. further reports that her mother was arrested and her cousin drove her from Saratoga to her grandfather's home.

c. According to Saratoga Springs City Court, the Respondent was arrested on or about September 4, 2025, and charged with criminal possession of a weapon, criminal contempt, and menacing pursuant to docket CR-XXXXX-25.

Wherefore, based on the foregoing the subject child, S.D., is a neglected child pursuant to Article 10 of the Family Court Act. (See, Neglect Petition bearing docket No. NN-XXXXX-25).

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A Fact-Finding Hearing (FFH) was held on February 18, 2026, and concluded on March 5, 2026.

On February 18, 2026, CPS Wright testified. Ms. Wright's testimony can be summarized as follows: On September 10, 2025, CPS Wright was the case worker assigned. CPS Wright interviewed the subject child, S.D., and the material grandfather (FFH@ page 11-13). The subject child report an incident she witnessed in Saratoga, New York, wherein the Respondent was arrested (FFH@ page.14) and according to the subject child, the day before the Respondent's arrest, subject child witnessed the Respondent — while in the car with her mother driving "DoorDash" — the Respondent slashed the tires on her ex-boyfriend's car (FFH@ page 14-15;32-34). According to CPS Wright, the subject child informed her she was "scared and afraid," as a result of the incident she witnessed. The subject child also saw the Respondent get into a dispute with the ex-boyfriend, and get into a fight and "maced" in the face by the ex-boyfriend's new girlfriend. The child also saw the Respondent get arrested. After the arrest, the subject child was returned to the Bronx and placed with the grandfather (FFH@ page15-16;35).

On cross examination, CPS Wright conceded she did not record in her notes that the child was scared and afraid or that she thought it was a bad idea for her mother to do what she did (FFH@ page39). CPS Wright also conceded she called the Saratoga jail, where Respondent was detained to confirm her detention, but did not seek to speak with the Respondent, nor did she investigate Respondent's self-defense claim. (FFH@ page.27-30; 40-41).

Respondent testified she first met Mr. Cooper (the ex-boyfriend) in November of 2020 (FFH@ page 53) and the relationship became physically violent in February of 2024 and May of 2025 (FFH@ page 54). According to Respondent, she enjoyed a good relationship with Mr. Cooper's family (FFH@ page 55) and on September 4, 2025, went to Mr. Cooper's sister's birthday party. Respondent felt a part of his family, and Respondent always got along with them despite the fact that Respondent and Mr. Cooper had "broke-up." However, Respondent did concede Mr. Cooper did not live far away from where the party was held. (FFH@ page 56-57). According to Respondent, Respondent and Mr. Cooper were working together at the Saratoga Racetrack in August and September of 2025. Respondent described their relationship "on and off," (FFH@ page 57) and Respondent testified she was staying with Mr. Cooper's sister during the time she was working at the Saratoga Racetrack (FFH@ page 57-58).

Respondent admitted seeing Mr. Cooper and Ms. Samaria Edwards (his girlfriend) together on September 3, 2025, (FFH@ page 58,61) and first saw Mr. Cooper when he ran up to her car holding a knife (FFH@ page 62). Respondent described Mr. Cooper as standing 6'2" and weighing 270 pounds. (FFH@ page 63). When Mr. Cooper approached her car, he asked if [*3]Respondent wanted to fight his girlfriend (Ms. Edwards) and proceeded to push the girl to fight Respondent, and according to the Respondent, she was forced to defend herself, and she was "maced" in the face twice. (FFH@ page 64-65).

When asked, what if anything did Respondent do when Mr. Cooper approached with a knife, Respondent asserted her fifth (5th) Amendment privilege. (FFH@ page 65-66). According to Respondent, Saratoga Police responded, and she was arrested, and Ms. Edwards was detained, after she gave the police the "mace" (FFH@ page 67).

On cross-examination, Respondent testified she did not know Mr. Cooper would be at the birthday party (FFH@ page 73) nor did she expect him there because of an order of protection he had obtained against her but was not yet served (FFH@ page 73-74;76). When asked if on September 3, 2025, she "slashed" Mr. Cooper's car tires while in the presence of her child, Respondent again asserted her 5th Amendment privilege against self-incrimination (FFH@ page 74, 82). Respondent did concede on September 3, 2025, she did get into a verbal dispute with Ms. Edwards (FFH@ page 75) and was aware that Mr. Cooper had a temporary order of protection out against her (although not served upon her) and went to the September 4, 2025, birthday party knowing that, and knowing Mr. Cooper lived close by. (FFH@ page 76-77; 78; 81-81).

The following evidence was accepted into the record:

Petitioner's Exhibit #1 Order of fact finding on inquest K. E. D., dated January 23, 2020

Petitioner's Exhibit #2 Permanency Hearing Order dated November 27, 2023

Petitioner's Exhibit #3 Saratoga Springs Police Dept redated records.

Respondent's Exhibit A Body Camera footage dated September 4, 2025

Respondent's Exhibit B Ellis H.S. Medical Record dated May 5, 2025

Respondent's Exhibit C Bronx Family Court order dated January 23, 2024 (Kaplan, J.)

As it relates to Respondent's Exhibit "A" Saratoga Springs Police Dept Body Camera footage dated September 4, 2025, this court reviewed the exhibit in camera.

Petitioner's Exhibit #3, the September 4, 2025, Saratoga Springs Police Dept redated report by P.O. William McDonough provides in the narrative section the details surrounding the arrest including statements made by Respondent. Specifically, P.O. William McDonough report indicates:

"[Respondent] kept saying that she has been trying to fight her (Ms. Edwards) as well and isn't scared of going to jail. [Respondent] stated that they met on the sidewalk halfway between Edwards' apartment and where [Respondent] parked her vehicle and that is when the incident unfolded. She stated that she was trying to fight Edwards and walked up on her in an aggressive manor, which Edwards responded by pepper spraying her in the face. She then stated that Cooper attached the male subject and then pulled a knife on them and threatened them with the knife. [Respondent] stated that when she was pepper prayed, she grabbed her taser out of her vehicle. [Respondent] then retrieved her taser and turned it over to myself, where I secured it and placed it in an evidence bag."

"After speaking with all parties involved, it was determined that [Respondent] has been the primary aggressor in the interaction". See Petitioner's Exhibit #3 Narrative section September 4, 2025, Saratoga Springs Police Dept redated report.

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As it relates to the Temporary Order of Protection obtained by Mr. Cooper against Respondent and provided to the Saratoga Springs responding police officers on September 4, 2025, the incident report indicates:

"Although [Respondent] was not served on the order of protection, she was previously advised by Ptl. Clinton from SSPD, yesterday 09/03/2025 and stated to her what she is not allowed to do, and to fully stay away from Cooper." See, Pages 1 through 2 of the Incident Report, dated September 4, 2025.

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THE LAW

Proceedings in the Family Court are civil in nature and are governed by the statutory framework set forth in Article 10 of the Family Court Act ("FCA"). In a child protective proceeding commenced pursuant thereto, the petitioner—here, the New York City Administration for Children's Services ("ACS")—bears the burden of proving the allegations contained in the petition by a preponderance of the evidence (FCA § 1046[b][i]). While the statute does not expressly define this standard, it is well settled that a preponderance of the evidence requires the trier of fact to determine whether the existence of a fact is more probable than its nonexistence. This standard is markedly less stringent than the "beyond a reasonable doubt" standard applicable in criminal proceedings, reflecting the remedial and protective, rather than punitive, purpose of Article 10.

In proceedings of this nature, it is not uncommon for the petitioner's proof to rely, in whole or in part, upon out-of-court statements made by a child to a Child Protective Services ("CPS") worker or other professional. The state legislature has addressed the admissibility and use of such statements in FCA § 1046(a)(vi), which provides that a child's out-of-court statements relating to allegations of abuse or neglect are admissible, provided that the statements are corroborated. The Court of Appeals, in Matter of Nicole V., 71 NY2d 112 (1987), made clear that the corroboration requirement arises not from any presumption that children are inherently unreliable, but rather from the hearsay nature of such statements. Accordingly, the statute requires "some other evidence" tending to establish the reliability of the child's account (id. at 118).

The corroboration requirement under FCA § 1046(a)(vi) is intentionally flexible and does not demand the type or quantum of proof required in criminal proceedings. As the Court of Appeals further observed, corroboration may consist of any evidence tending to support the child's out-of-court statements, and only a relatively low degree of corroboration is necessary (Matter of Christina F., 74 NY2d 532, 536). The determination of whether such corroboration exists is committed to the sound discretion of the trial court, which is uniquely positioned to evaluate the totality of the circumstances, including the consistency of the child's statements, the presence of supporting evidence, and the credibility of the witnesses who testify.

Equally well established is the principle that issues of credibility are primarily for the trier of fact. The Family Court, having had the opportunity to observe the demeanor, tone, and manner of each witness, is in the best position to assess the weight to be accorded to the testimony presented. Such determinations are entitled to substantial deference and will not be disturbed absent a clear abuse of discretion.

In the case at bar, the Court has carefully considered the entirety of the testimonial and documentary evidence. The Court notes that the central allegation concerning the tire-slashing [*4]incident of September 3, 2025, was not observed by any witness other than the subject child, who did not testify and was therefore not subject to cross-examination. Notwithstanding this limitation, the Court finds that the child's out-of-court statements, as relayed through the CPS worker, were detailed, internally consistent, and generally consistent with the surrounding circumstances.

The Court further finds that these statements are sufficiently corroborated within the meaning of FCA § 1046(a)(vi). In reaching this conclusion, the Court relies, in significant part, upon the Respondent's invocation of her Fifth Amendment privilege against self-incrimination when questioned about the events of September 3, 2025, (FFH@ page 74, 82), as well as the permissible adverse inferences that may be drawn therefrom.

The privilege against self-incrimination, as guaranteed by the 5th Amendment to the United States Constitution and Article I, § 6 of the New York State Constitution, permits an individual to decline to answer questions where truthful responses might tend to incriminate that individual in a future criminal proceeding. However, it is equally well settled that, in civil proceedings, the invocation of this privilege may give rise to an adverse inference against the party asserting it (Baxter v. Palmigiano, 425 U.S. 308, 320 [1976]). Such an inference is not automatic; rather, it is permissive and rests within the sound discretion of the fact-finder.

New York Courts have articulated certain guiding principles governing the application of adverse inferences. The inference must be tethered to specific questions posed and left unanswered; it must be limited to the subject matter of those questions; and the court must determine, based on the totality of the circumstances, whether it is appropriate to draw such an inference and the weight it should be afforded (LiButti v. United States, 107 F.3d 110, 120—25 [2d Cir. 1997]; also see, Matter of Leah M. v. Anthony M., 81A.D.3d 434 (1st Dept. 2011); Matter of Angel P. (Jose C.), 155 AD3d 569 (1st Dept. 2017).

Within the context of a Family Court Article 10 proceeding, these principles take on particular significance. While a respondent retains the constitutional right to invoke the privilege against self-incrimination, the court's obligation in its truth-seeking function to protect the welfare of the child permits the Court to draw reasonable adverse inferences from a respondent's silence. This reflects the distinct and paramount purpose of such proceedings: the protection of children from harm and the prevention of future risk.

Applying these principles to the case at bar, the Court finds that Respondent's refusal to answer questions directly concerning the alleged tire-slashing incident was highly probative and directly relevant to the core issues before the Court. The absence of any alternative explanation for her silence further supports the conclusion that her answers would have been unfavorable. Accordingly, the Court exercises its discretion to draw an adverse inference, which, when considered in conjunction with the other evidence in the record, serves to corroborate the child's out-of-court statements.

Likewise, the Court rejects Respondent's self-defense claim based on the totality of the facts in this record. The academic question of whether an affirmative self-defense claim can be asserted in an FCA Article 10 proceeding excusing Respondent's neglect has been resolved antidotally. In New York, there is a body of reported cases where the self-defense claim was asserted and rejected driven by the particular facts of each case and measured by a reasonable response to the provocation standard. See, e.g., Matter of Lily A.(Tenise ZZ.), 227 AD3d 1205 (3rd Dept. 2024); Matter of Janiya T. (Johnas M.), 191 AD3d 681 (2d Dept. 2021); Matter of Imanie S. (Lloyd S.), 43 Misc 3d 1230(A)(Bx Fam. Ct. 2014)(Pitchal,J.).

While the Court acknowledges that Respondent has been a victim of domestic violence, that fact alone does not render all subsequent conduct reasonable or justified. Claims of self-defense in Article 10 proceedings must be evaluated considering the particular facts presented and measured against an objective standard of reasonableness.

Here, the record reflects that on September 3, 2025, Respondent was explicitly informed by a Saratoga Springs police officer that Mr. Cooper had obtained a temporary order of protection against her. In light of this information, it was not reasonable for Respondent to assume that Mr. Cooper would be absent from the location in question. Moreover, the documentary evidence, including the police report dated September 4, 2025, identifies Respondent as the primary aggressor in the incident. Respondent's own statements, as recorded in that report, further undermine her claim, as does her invocation of the Fifth Amendment when asked to describe her actions upon Mr. Cooper's approach (FFH@ page 65—66).

When viewed in its totality, the evidence does not support the finding that Respondent's conduct constituted a reasonable or proportionate response to any perceived threat. Accordingly, the Court finds that Respondent's claim of self-defense lacks credibility and must be rejected. Pursuant to FCA § 1012(f)(i), a finding of neglect is warranted where a parent fails to exercise a minimum degree of care in providing proper supervision or guardianship, thereby impairing or placing the child in imminent danger of impairment. Such a failure reflects a fundamental deficiency in parental judgment and creates an environment that is detrimental to the child's physical, mental, and emotional well-being. Based upon careful review of the entire record and giving due consideration to the credibility of the witnesses, the corroborative evidence, and the reasonable inferences to be drawn therefrom, the Court finds that the Petitioner has sustained its burden of proof. The Court therefore concludes, by a preponderance of the evidence, that Respondent committed acts constituting neglect of the subject child.

This constitutes the decision and order of the court.

Dated: April 13, 2026

Bronx, NY

HON. ANGEL CRUZ, A.J.F.C.