Opinion
348 CAF 19-01476
04-30-2021
In the MATTER OF CRYSTAL S., Deanna P., Elaina P., Gabriella S., and Kaydalin P. Oneida County Department of Social Services, Petitioner-Respondent; v. Patrick P., Respondent-Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT. PETER M. RAYHILL, COUNTY ATTORNEY, UTICA (MARYANGELA SCALZO OF COUNSEL), FOR PETITIONER-RESPONDENT. DIANE MARTIN-GRANDE, ROME, ATTORNEY FOR THE CHILDREN.
PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT.
PETER M. RAYHILL, COUNTY ATTORNEY, UTICA (MARYANGELA SCALZO OF COUNSEL), FOR PETITIONER-RESPONDENT.
DIANE MARTIN-GRANDE, ROME, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent appeals from an order in which Family Court determined, inter alia, that he abused and neglected a child, i.e., the daughter of his long-term live-in girlfriend, and derivatively neglected his four biological children. Contrary to respondent's contention, we conclude that the court's determination that the child was abused as a result of respondent's sexual abuse is supported by the requisite preponderance of the evidence (see generally Family Ct Act § 1046 [b] [i] ; Matter of Sean P. [Brandy P.] , 156 A.D.3d 1339, 1339, 65 N.Y.S.3d 902 [4th Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1528127 [2018] ) inasmuch as the child's out-of-court statements describing the abuse are sufficiently corroborated by other evidence (see generally Matter of Timothy B. [Paul K.] , 138 A.D.3d 1460-1461, 30 N.Y.S.3d 455 [4th Dept. 2016], lv denied 28 N.Y.3d 908, 2016 WL 6783120 [2016] ). "A child's out-of-court statements may form the basis for a finding of [abuse or] neglect as long as they are sufficiently corroborated by [any] other evidence tending to support their reliability" ( Matter of Nicholas L. , 50 A.D.3d 1141, 1142, 857 N.Y.S.2d 629 [2d Dept. 2008] ; see § 1046 [a] [vi] ; Matter of Nicole V. , 71 N.Y.2d 112, 117-118, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987], rearg denied 71 N.Y.2d 890, 527 N.Y.S.2d 772, 522 N.E.2d 1070 [1988] ). "Courts have considerable discretion in determining whether a child's out-of-court statements describing incidents of abuse have been reliably corroborated and whether the record as a whole supports a finding of abuse[ or neglect] ..., and [t]he Legislature has expressed a clear intent that a relatively low degree of corroborative evidence is sufficient in [child protective] proceedings" ( Matter of Nicholas J.R. [Jamie L.R.] , 83 A.D.3d 1490, 1490, 922 N.Y.S.2d 679 [4th Dept. 2011], lv denied 17 N.Y.3d 708, 2011 WL 4028757 [2011] [internal quotation marks omitted]).
Here, the child disclosed to a caseworker and a police investigator that respondent had repeatedly demanded to examine her genitals in order to determine whether she was a virgin. The child further disclosed that respondent had placed his hand on her genitals and used his hands to spread them open, and also once requested to "do more" with his finger. When confronted with those allegations, respondent told the caseworker and the police investigator that he had inadvertently observed the child while she was naked from the waist down and that he was able to tell from 10 feet away that her hymen was intact. That partial admission by respondent, together with testimony from the child's mother that was consistent with some details of the child's allegations, including that respondent had access to the child at the times of day when the child said that the abuse occurred, was sufficient to corroborate the child's out-of-court statements (see Family Ct Act § 1046 [a] [vi]; see generally Matter of Sandra S. , 195 A.D.2d 1070, 1071, 600 N.Y.S.2d 538 [4th Dept. 1993] ).