Opinion
CAF 03-00411
October 2, 2003.
Appeal from an order of Family Court, Onondaga County (Klim, J.), entered April 19, 2002, which, inter alia, placed respondent under the supervision of petitioner for a period of 12 months.
LINDA M. CAMPBELL, SYRACUSE, FOR RESPONDENT-APPELLANT.
ANTHONY P. RIVIZZIGNO, COUNTY ATTORNEY, SYRACUSE (SARA J. LANGAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
SUSAN B. MARRIS, LAW GUARDIAN, MANLIUS, FOR YORIMAR K.-M.
ANTHONY BELLETIER, LAW GUARDIAN, SYRACUSE, FOR ADA A.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, SCUDDER, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Contrary to the contention of respondent, Family Court properly determined that he sexually abused one of his daughters and neglected another daughter. Respondent failed to object to the validation testimony of petitioner's expert at trial and thus failed to preserve for our review his present contention that the court erred in determining that the expert's testimony was reliable. In any event, "there is adequate record evidence to support [the court's] decision to credit the validation testimony of petitioner's expert" ( Matter of Katje YY., 233 A.D.2d 695, 696; see Matter of Thomas N., 229 A.D.2d 666, 668; cf. Matter of Jared XX., 276 A.D.2d 980, 982-983). We conclude that the validation testimony of petitioner's expert sufficiently corroborated the unsworn out-of-court statements of the victim ( see Family Ct Act 1046 [a] [vi]; Matter of Nicole V., 71 N.Y.2d 112, 117-118). Although the expert did not specifically testify that the victim had in fact been abused, she testified that the victim's behavior was consistent with that of children who had been sexually abused ( see Matter of Shawn P., 266 A.D.2d 907, lv denied 94 N.Y.2d 760; Matter of Elizabeth G., 255 A.D.2d 1010, lv dismissed 93 N.Y.2d 848, lv denied 93 N.Y.2d 814; cf. Matter of Alexander EE., 267 A.D.2d 723, 726-727). Respondent's reliance on our decision in Matter of Tomas E. ([appeal No. 2] 295 A.D.2d 1015) for the proposition that a validator must testify that a child was truthful and was in fact sexually abused is misplaced. In that case, we determined that the validator's testimony was sufficient to establish the abuse but was insufficient to corroborate the child's testimony that the mother knew of the abuse where the mother denied knowledge and the validator could not "express an opinion as to which of the two was telling the truth" ( id. at 1018).
In any event, there was ample corroboration even without consideration of the validation testimony of petitioner's expert. The school psychologist and child protective services caseworker both opined, without objection, that the victim was abused and was truthful with respect to her allegations of abuse. Although "repetition of an accusation by a child does not corroborate the child's prior account of [abuse]" ( Matter of Francis Charles W., 71 N.Y.2d 112, 124, rearg denied 71 N.Y.2d 890; see Tomas E., 295 A.D.2d at 1019), "the consistency of the child[`s] out-of-court statements describing respondent's sexual conduct enhances the reliability of those out-of-court statements" ( Matter of Rebecca S., 269 A.D.2d 833, 833; see Matter of Joshua QQ., 290 A.D.2d 842, 843; Matter of Rhianna R., 256 A.D.2d 1184). Furthermore, the child's demonstration of sexual acts through the use of dolls is evidence tending to corroborate the child's out-of-court statements ( see Matter of Victoria H., 255 A.D.2d 442, 443; Matter of Sharrell B., 190 A.D.2d 629, 629-630, lv denied 81 N.Y.2d 710). Corroboration is further found in the child's age-inappropriate knowledge of sexual conduct ( see Nicole V., 71 N.Y.2d at 121; Joshua QQ., 290 A.D.2d at 843).
The Law Guardian for the neglected child failed to file a notice of appeal, and thus the issues raised by that Law Guardian are beyond our review ( see Matter of Zena O., 212 A.D.2d 712, 714; see also Matter of Brittni K., 297 A.D.2d 236, 240; see generally Hecht v. City of New York, 60 N.Y.2d 57, 60-61). Although respondent adopted one of the issues raised by the Law Guardian, that issue is not properly before us because it is raised for the first time in respondent's reply brief ( see Greene v. Xerox Corp., 244 A.D.2d 877, 878, lv denied 91 N.Y.2d 809; O'Sullivan v. O'Sullivan, 206 A.D.2d 960).