Opinion
2011-11-10
In the Matter of LYDIA C.Steuben County Department of Social Services, Petitioner–Respondent;Albert C., Respondent–Appellant. (Appeal No. 1.)
Rosemarie Richards, South New Berlin, for Respondent–Appellant. Alan P. Reed, County Attorney, Bath (Michelle A. Cooke of Counsel), for Petitioner–Respondent.
Rosemarie Richards, South New Berlin, for Respondent–Appellant. Alan P. Reed, County Attorney, Bath (Michelle A. Cooke of Counsel), for Petitioner–Respondent. Bonita Stubblefield, Attorney for the Child, Piffard, for Lydia C.
PRESENT: FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ.
MEMORANDUM:
In appeal No. 1, respondent father appeals from an order determining, following a fact-finding hearing, that he sexually abused the child who is the subject of these proceedings. In appeal No. 2, the father appeals from an order granting petitioner mother sole custody of the child and suspending his visitation with the child. Contrary to the contention of the father in appeal No. 1, Family Court properly denied his motion to dismiss the abuse petition inasmuch as the out-of-court statements of the child were sufficiently corroborated by other evidence tending to support their reliability ( see Family Ct. Act § 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, rearg. denied 71 N.Y.2d 890, 527 N.Y.S.2d 772, 522 N.E.2d 1070; Matter of Nicholas J.R., 83 A.D.3d 1490, 922 N.Y.S.2d 679, lv. denied 17 N.Y.3d 708, 2011 WL 4028757; Matter of Colberdee C., 2 A.D.3d 1316, 770 N.Y.S.2d 265). Family Court has “ ‘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’ ” ( Nicholas J.R., 83 A.D.3d 1490, 922 N.Y.S.2d 679; see Colberdee C., 2 A.D.3d 1316, 770 N.Y.S.2d 265).
Here, the out-of-court statements of the child were sufficiently corroborated by the testimony of her therapists, who both opined that the child's behavior following the alleged abuse was consistent with a child who has been sexually abused ( see Matter of Breanna R., 61 A.D.3d 1338, 1340, 876 N.Y.S.2d 829; Matter of Yorimar K.-M., 309 A.D.2d 1148, 765 N.Y.S.2d 283; cf. Matter of Kalifa K., 37 A.D.3d 1180, 829 N.Y.S.2d 794). Both of the child's therapists also opined that her out-of-court statements were credible ( see Nicholas J.R., 83 A.D.3d 1490, 922 N.Y.S.2d 679; Yorimar K.-M., 309 A.D.2d 1148, 765 N.Y.S.2d 283; Matter of Victoria KK., 233 A.D.2d 801, 803, 650 N.Y.S.2d 390), and those out-of-court statements were “ ‘consisten[t] ... [in] describing [the] sexual conduct’ ” ( Yorimar K.-M., 309 A.D.2d at 1149, 765 N.Y.S.2d 283; see Nicholas J.R., 83 A.D.3d 1490, 922 N.Y.S.2d 679). Further, the child's out-of-court statements were corroborated by the unsworn testimony that she gave on cross-examination at the fact-finding hearing ( see Matter of Christina F., 74 N.Y.2d 532, 535–537, 549 N.Y.S.2d 643, 548 N.E.2d 1294; Matter of Telsa Z., 71 A.D.3d 1246, 1249–1250, 897 N.Y.S.2d 281; Matter of Elizabeth D., 139 A.D.2d 66, 67–70, 530 N.Y.S.2d 397, appeal dismissed 73 N.Y.2d 871, 537 N.Y.S.2d 495, 534 N.E.2d 334).
The father further contends that the abuse petition should have been dismissed because the evidence was insufficient to identify him as the perpetrator of the alleged abuse. That contention, however, is not preserved for our review inasmuch as the father failed to move to dismiss the petition on that ground ( see Matter of Syira W., 78 A.D.3d 1552, 911 N.Y.S.2d 551). In any event, we conclude that Family Court's finding of sexual abuse is supported by the requisite preponderance of the evidence ( see Family Ct. Act § 1046[b] [i]; Nicholas J.R., 83 A.D.3d at 1490, 922 N.Y.S.2d 679; see generally Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038).
The father contends that the court erred in allowing petitioner to present validation testimony, i.e., the testimony of the child's therapists, because those therapists were not identified as potential witnesses in the abuse petition. That contention, however, is not preserved for our review ( see generally Matter of Brayanna G., 66 A.D.3d 1375, 891 N.Y.S.2d 565, lv. denied 13 N.Y.3d 714, 2010 WL 92458) and, inasmuch as the abuse petition was not included in the record on appeal, that contention is not properly before us ( see generally Matter of Jennifer O., 281 A.D.2d 937, 722 N.Y.S.2d 206, lv. dismissed in part and denied in part 98 N.Y.2d 666, 746 N.Y.S.2d 452, 774 N.E.2d 217). In any event, the father's contention is without merit. Family Court Act § 1031(a) does not require petitioner to list all potential witnesses but, rather, it requires petitioner to allege only those “facts sufficient to establish that a child is an abused ... child” ( see Matter of Roman, 94 Misc.2d 796, 798, 405 N.Y.S.2d 899; cf. CPLR 3101[d][1][i]; Family Ct. Act § 1038[d] ). We have reviewed the father's remaining contentions in appeal No. 1 and conclude that none warrants reversal of the order.
We reject the father's contention in appeal No. 2 that the court erred in suspending his visitation with the child. “ ‘Visitation decisions are generally left to Family Court's sound discretion, requiring reversal only where the decision lacks a sound and substantial basis in the record’ ” ( Matter of Nicole J.R. v. Jason M.R., 81 A.D.3d 1450, 1451, 917 N.Y.S.2d 495, lv. denied 17 N.Y.3d 701, 2011 WL 2183839; see Fox v. Fox, 177 A.D.2d 209, 211–212, 582 N.Y.S.2d 863). Here, the court determined that the father sexually abused the child ( see e.g. Matter of Kimberly CC. v. Gerry CC., 86 A.D.3d 728, 729, 927 N.Y.S.2d 191; Matter of Kole HH., 84 A.D.3d 1518, 1519–1520, 923 N.Y.S.2d 760), and the father refused to proceed with recommended sex offender treatment and mental health counseling ( see Matter of Telsa Z., 84 A.D.3d 1599, 1601–1602, 923 N.Y.S.2d 768). Further, one of the child's therapists opined that any visitation between the father and the child would be detrimental to the mental health of the child, and the child testified during the fact-finding hearing that she does not want to see the father or return to his home ( see Veronica S. v. Philip R.S., 70 A.D.3d 1459, 1460, 894 N.Y.S.2d 644; Matter of Jeffrey L.J. v. Rachel K.B., 42 A.D.3d 912, 913–914, 839 N.Y.S.2d 391; see generally Fox, 177 A.D.2d at 210, 582 N.Y.S.2d 863).
Contrary to the father's further contention, the court did not abuse its discretion in failing to order a child protective investigation of the mother's home pursuant to Family Court Act § 1034(1)(b). Here, there was no indication in the petition or during the proceedings that the child was abused, neglected or mistreated in the mother's home ( see Matter of Corrigan v. Orosco, 84 A.D.3d 955, 921 N.Y.S.2d 893).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.