Opinion
2013-04-17
In the Matter of NICOLE G. (Anonymous). Rockland County Department of Social Services, appellant; Louis G. (Anonymous), respondent. (Proceeding No. 1) In the Matter of Daniella G. (Anonymous). Rockland County Department of Social Services, appellant; Louis G. (Anonymous), respondent. (Proceeding No. 2).
Jeffrey J. Fortunato, County Attorney, New City, N.Y. (Barbara M. Wilmit of counsel), for appellant. Alvin L. Spitzer, Pearl River, N.Y., for respondent.
Jeffrey J. Fortunato, County Attorney, New City, N.Y. (Barbara M. Wilmit of counsel), for appellant. Alvin L. Spitzer, Pearl River, N.Y., for respondent.
Alexander Bursztein, New City, N.Y. (Francesca D.G. Eugene of counsel), for the child Nicole G.
Cassandra Bilotta, New City, N.Y., for the child Daniella G.
MARK C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In two related child protective proceedings pursuant to Family Court Act article 10, the Rockland County Department of Social Services appeals from two orders of the Family Court, Rockland County (Eisenpress, J.) (one as to each child), both dated July 26, 2012, which, after a fact-finding hearing, denied the petitions and dismissed the proceedings.
ORDERED that the orders are affirmed, without costs or disbursements.
A child's out-of-court statements may provide the basis for a finding of abuse if the statements are sufficiently corroborated by other evidence tending to support the reliability of the child's statements ( seeFamily Ct. Act § 1046[a][vi]; Matter of Nicole V., 71 N.Y.2d 112, 123, 524 N.Y.S.2d 19, 518 N.E.2d 914;Matter of Tristan R., 63 A.D.3d 1075, 1076, 883 N.Y.S.2d 229;Matter of Candace S., 38 A.D.3d 786, 788, 832 N.Y.S.2d 612). The Family Court has considerable discretion in deciding whether a child's out-of-court statements alleging incidents of abuse have been reliably corroborated ( see Matter of Nicole V., 71 N.Y.2d at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914;Matter of Tristan R., 63 A.D.3d at 1076, 883 N.Y.S.2d 229;Matter of Candace S., 38 A.D.3d at 788, 832 N.Y.S.2d 612), and its findings must be accorded deference on appeal where, as here, the Family Court is primarily confronted with issues of credibility ( see Matter of Jada K.E. [ Richard D.E. ], 96 A.D.3d 744, 745, 949 N.Y.S.2d 58;Matter of Jeshaun R. [ Ean R. ], 85 A.D.3d 798, 799, 925 N.Y.S.2d 533;Matter of Candace S., 38 A.D.3d at 787, 832 N.Y.S.2d 612;Matter of Sylvia J., 23 A.D.3d 560, 562, 804 N.Y.S.2d 783).
The Family Court properly found that the record as a whole did not support a finding that the father abused Nicole G. and derivatively neglected Daniella G. because Nicole G.'s out-of-court statements regarding various incidents of the father's abusive conduct, made when she was 14 years old, were insufficiently corroborated by other evidence tending to support their reliability.
The witnesses' testimony at the fact-finding hearing established that Nicole G. divulged the same incidents to the social worker at her school, the investigating detective, and a child protective services caseworker, and a handwritten narrative by Nicole G. which conformed to these disclosures was admitted into evidence. However, Nicole G. adamantly refused to testify at the fact-finding hearing, even after being served with a subpoena. Although the witnesses essentially cross-corroborated each other's testimony, the petitioner was required to establish competent, nonhearsay, relevant evidence to reliably corroborate, or “validate,” the out-of-court disclosures ( see Matter of Jada K.E. [ Richard D.E. ], 96 A.D.3d at 745, 949 N.Y.S.2d 58;Matter of Linda K., 132 A.D.2d 149, 157, 521 N.Y.S.2d 705).
The petitioner's expert in child sexual abuse who interviewed Nicole G. was unable to provide the requisite corroborating evidence. The expert failed to identify the generally accepted professional protocols adhered to in the mental health and medical communities and compare them to the protocol she employed. The expert opined that Nicole G.'s “behavior” and “affect” were consistent with that of a sexually abused child, but she did not render a professional opinion with a reasonable degree of certainty that it was likely the abuse occurred.
As the allegations of abuse were not established by a preponderance of the evidence, the Family Court did not err in denying the petitions and dismissing the proceedings.