Opinion
May 5, 1994
Appeal from the Family Court of Dutchess County (Marlow, J.).
Respondent and his spouse are the parents of four children: David (born in Dec. 1983), Christopher (born in Feb. 1987), Michael (born in Dec. 1988) and Thomas (born in Feb. 1991). In May 1989, petitioner commenced separate proceedings against respondent and his spouse alleging that they had each neglected David. Thereafter, in August 1989, petitioner filed amended abuse and neglect petitions alleging, inter alia, that David had been sexually abused and that his siblings Christopher and Michael had been neglected as well. A fact-finding hearing was conducted in February and March 1990, at the conclusion of which Family Court found, inter alia, that respondent and his spouse physically and sexually abused David (see, Family Ct Act § 1012 [e] [iii]; [f] [i]) and, further, made derivative findings of neglect against respondent and his spouse with respect to Christopher and Michael (see, Family Ct Act § 1046 [a] [i]). Following a dispositional hearing, Family Court, inter alia, placed David, Christopher and Michael in petitioner's custody for an initial 12-month period and ordered respondent to undergo counseling. Respondent appeals.
The record indicates that the remaining child, Thomas, was the subject of a separate neglect proceeding that is not at issue on this appeal.
It does not appear that respondent's spouse has appealed this determination.
Family Court Act § 1046 (b) (i) provides that in a fact-finding hearing, any determination that a child is abused or neglected must be based upon a preponderance of the evidence. Although respondent contends that such evidentiary standard violates his due process rights, such argument has previously been considered and rejected (see, Matter of Alena D., 125 A.D.2d 753, 754, lv denied 69 N.Y.2d 605; see also, Matter of Katrina W., 171 A.D.2d 250, 252-253, appeal dismissed 79 N.Y.2d 976, cert denied sub nom. Rosalyn W. v. Suffolk County Dept. of Social Servs., ___ US ___, 113 S Ct 217; cf., Matter of Nicole V., 71 N.Y.2d 112; Matter of Tammie Z., 66 N.Y.2d 1).
Equally unavailing is respondent's contention that the statements made by the children were not sufficiently corroborated. It is well settled that in a child protective proceeding under Family Court Act article 10, "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence" and, if properly corroborated, will be sufficient to sustain a finding of abuse or neglect (Family Ct Act § 1046 [a] [vi]; see, Matter of Nicole V., supra, at 117-118; Matter of Department of Social Servs. v Warren D., 195 A.D.2d 460, 460-461; Matter of Brandon UU., 193 A.D.2d 835, 836). To that end, the statute broadly provides that "[a]ny other evidence tending to support the reliability of the previous statements * * * shall be sufficient corroboration" (Family Ct Act § 1046 [a] [vi]), and Family Court is vested with considerable discretion in determining whether a child's statements have been sufficiently corroborated and, further, whether the record as a whole supports a finding of abuse or neglect (see, Matter of Christina F., 74 N.Y.2d 532, 536; Matter of Department of Social Servs. v. Waleska M., 195 A.D.2d 507, 509-510, lv denied 82 N.Y.2d 660).
Here, the record indicates that David made detailed and consistent out-of-court statements to his foster mother, one of petitioner's caseworkers and Rita Jaeger, an expert in pediatric medicine and pediatric psychiatry, regarding respondent's sexual abuse. Jaeger's physical examination of David revealed certain medical findings which, although not conclusive, were suggestive of sodomy and tended to support David's statements (see, Matter of Alena D., 125 A.D.2d 753, 754, supra; see also, Matter of Commissioner of Social Servs. of City of N.Y. [Jannie S. — Rafael R.], 188 A.D.2d 528, 529). Additionally, Christopher made certain statements to his foster mother regarding respondent's sexual abuse which, in turn, corroborated David's prior statements (see, e.g., Matter of Danielle YY., 188 A.D.2d 894, 895, lv denied 81 N.Y.2d 706; Matter of Scott X., 184 A.D.2d 866, 868). In our view, this and other evidence in the record supports Family Court's finding of abuse as to David, as well as the derivative findings of neglect made with respect to Christopher and Michael (see, Family Ct Act § 1046 [a] [i]; Matter of Guy UU., 200 A.D.2d 852, 853; Matter of Vincent M., 193 A.D.2d 398, 404). To the extent that respondent denied the allegations set forth in the amended petition, this merely presented a credibility issue for Family Court to resolve. We see no basis in the record to disturb Family Court's determination (see generally, Matter of Esther CC., 194 A.D.2d 949, 951).
Respondent finally contends that Family Court erred in considering the foster mother's testimony regarding instances where the children were seen acting out sexual behavior without accompanying expert testimony to interpret such behavior. Respondent's argument on this point is lacking in merit (cf., Matter of Dutchess County Dept. of Social Servs. v. Margaret F., 186 A.D.2d 254; Matter of Anita U., 185 A.D.2d 378), as are respondent's remaining contentions.
Mikoll, J.P., Mercure and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, without costs.