A child's stricken Family Court sexual-abuse testimony from a custody-related hearing can still be considered in a separate hearing focused on whether the alleged abuse actually happened, provided there is corroboration of the testimony, a state appeals court has ruled.

An Appellate Division, First Department panel has ruled that a 2016 fact-finding order by a Bronx Family Court justice that said Jesus O. had sexually abused minor Ashley F. must be affirmed, turning back Jesus O.'s appeal.

The unanimous panel wrote in its decision that it had considered the issue of whether a child's testimony stricken from a hearing pursuant to Family Court Act Section 1028—which focuses on whether a child temporarily removed should be returned to a guardian—may be considered in connection with a fact-finding hearing regarding abuse allegations, pursuant to Family Court Act Section 1046(a)(vi). The panel wrote that “it may be so used.” (Family Court Act Section 1046(a)(vi) addresses the admissibility of previous statements made by the child relating to allegations of abuse or neglect. Family Court Act Section 1046, more broadly, addresses evidence issues in abuse and neglect hearings.)

Turning its attention to the sexual abuse allegations made by Ashley F., the panel explained that Family Court Act Section 1046(a)(vi) provides in part that “'previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence,' when corroborated, and '[t]he testimony of the child shall not be necessary to make a fact-finding of abuse or neglect.'”

In Ashley F.'s case, wrote the panel, the then-14-year-old had refused to continue with her sexual abuse testimony at an FCA 1028 hearing—meaning a hearing addressing whether a temporarily removed child should be returned to a guardian—after she'd already been cross-examined for three days by Jesus O.'s counsel.

At a later 2016 fact-finding hearing focused on whether the sexual abuse happened, Bronx Family Court Justice Valerie Pels ruled that Jesus O. had sexually abused Ashley F. and had derivatively abused Jaylyn Z., Destiny O., Jaydyan O., Maci O. and Hevenly O., the panel noted. The panel further indicated that Pels had used Ashley F.'s FCA 1028 testimony regarding the alleged abuse in her fact-finding.

“We agree with the Family Court that it could rely upon Ashley's incomplete testimony for the purposes of the subsequent fact-finding hearing, subject to a statutory requirement of corroboration,” panel Justices Rosalyn Richter, Judith Gische, Cynthia Kern and Peter Moulton wrote.

“The use of Ashley's incomplete testimony was in accordance with the legislative intent of Family Ct Act Section 1046(a)(vi) to address 'the reluctance or inability of victims to testify,'” the justices said, citing Matter of Nicole V.

They then pointed out that “significantly, during the fact-finding hearing, the allegations of sexual abuse were corroborated by testimony from Ashley's therapist, who stated that Ashley disclosed that [Jesus O.] sexually abused her, and expressed symptoms and behaviors” consistent with post-traumatic stress disorder and other abuse symptoms.

Moreover, a supervising psychologist testified and confirmed Ashley's diagnosis of PTSD, sexual abuse and neglect.

“Such expert testimony was sufficient to support a finding of sexual abuse … and we see no reason to disturb the findings of derivative abuse as to the other children,” the justices wrote in their March 14 opinion.

The panel's ruling addressed a 2017 order of disposition by Pels, in that that order brought up for review her 2016 fact-finding order, the decision indicated.

Roshell Amezcua of The Bronx Defenders represented Jesus O., and did not respond to a request for comment. Claire Merkine of the The Legal Aid Society represented Ashley F. The Legal Aid Society did not respond to a request for comment.

The city Law Department was counsel for the Administration for Children's Services. The Law Department declined to comment.

Steven Feinman, an attorney in White Plains, represented Jaylyn Z., Hevenly O., Jaydan O., Destiny O. and Maci O., the decision said.