Opinion
577 CAF 17-02101
07-24-2020
In the MATTER OF SKYLER D., Emily D., Andrew D., and Joseph D., Jr. Steuben County Department of Social Services, Petitioner-Respondent; Joseph D., Sr., Respondent-Appellant. (Appeal No. 4.)
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR RESPONDENT-APPELLANT. JESSICA M. PEASLEE, BATH, FOR PETITIONER-RESPONDENT. MARYBETH D. BARNET, MIDDLESEX, ATTORNEY FOR THE CHILDREN.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR RESPONDENT-APPELLANT.
JESSICA M. PEASLEE, BATH, FOR PETITIONER-RESPONDENT.
MARYBETH D. BARNET, MIDDLESEX, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In these proceedings pursuant to Family Court Act article 10, respondent father appeals in appeal Nos. 1, 2, and 3 from two orders and an amended order in which Family Court found, inter alia, that he abused and neglected his older daughter and derivatively abused and neglected his three other children. In appeal No. 4, the father appeals from an order of disposition that, among other things, placed all four children with their mother and ordered that the father have no contact with them. We note at the outset that the father's appeals from the orders and amended order in appeal Nos. 1, 2, and 3 must be dismissed inasmuch as the appeal from the dispositional order in appeal No. 4 "bring[s] up for review the propriety of the fact-finding order[s]" ( Matter of Deseante L.R. [Femi R.] , 159 A.D.3d 1534, 1535, 72 N.Y.S.3d 713 [4th Dept. 2018] ; see Matter of Lisa E. [Appeal No. 1], 207 A.D.2d 983, 983, 617 N.Y.S.2d 657 [4th Dept. 1994] ).
Contrary to the father's contention in appeal No. 4, we conclude that there is a sound and substantial basis in the record supporting the court's determination that his older daughter was neglected and abused as a result of the father's sexual abuse (see generally Family Ct Act § 1046 [b] [i] ; Matter of Sean P. [Brandy P.] , 156 A.D.3d 1339, 1339-1340, 65 N.Y.S.3d 902 [4th Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1528127 [2018] ). "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 older daughter's disclosures of sexual abuse were sufficiently corroborated by the testimony of her speech therapist, a school psychologist, and a caseworker trained in forensic interviewing techniques, as well as by the child's "age-inappropriate knowledge of sexual matters" ( Matter of Liam M.J. [Cyril M.J.] , 170 A.D.3d 1623, 1624, 96 N.Y.S.3d 798 [4th Dept. 2019], lv denied 33 N.Y.3d 911, 2019 WL 4066980 [2019] [internal quotation marks omitted]; see Family Ct. Act § 1046 [a] [vi] ; Matter of Brooke T. [Justin T.] , 156 A.D.3d 1410, 1411, 67 N.Y.S.3d 377 [4th Dept. 2017] ). Furthermore, we note that "the child gave multiple, consistent descriptions of the abuse and, [a]lthough repetition of an accusation by a child does not corroborate the child's prior account of [abuse] ..., the consistency of the child['s] out-of-court statements describing [the] sexual conduct enhances the reliability of those out-of-court statements" ( Brooke T. , 156 A.D.3d at 1411, 67 N.Y.S.3d 377 [internal quotation marks omitted] ).
Although the father is correct that "the court failed to comply with Family Court Act § 1051 (e) by specifying the particular sex offense perpetrated upon the child as defined in Penal Law article 130," we conclude that the error is " ‘technical in nature and harmless’ " (Matter of Eden S. [Joshua S.] , 117 A.D.3d 1562, 1563, 986 N.Y.S.2d 296 [4th Dept. 2014], lv denied 24 N.Y.3d 906, 2014 WL 5366329 [2014] ; see Matter of Shannon K. , 222 A.D.2d 905, 906, 635 N.Y.S.2d 751 [3d Dept. 1995] ). Because the older daughter was seven years old at the time of the contact, the specific offense could only be sexual abuse in the first degree (see Penal Law § 130.65 [3] ; Eden S. , 117 A.D.3d at 1563, 986 N.Y.S.2d 296 ). Contrary to the father's further contention, where, as here, the underlying crime is sexual abuse, "the court is permitted to infer the sexual gratification element from the conduct itself if that conduct involved the deviate touching of the child's genitalia," which is the case here ( Eden S. , 117 A.D.3d at 1563, 986 N.Y.S.2d 296 ).
We further conclude that the finding of derivative abuse and neglect with respect to the three other children is supported by a preponderance of the evidence (see Matter of Alexia J. [Christopher W.] , 126 A.D.3d 1547, 1548, 3 N.Y.S.3d 877 [4th Dept. 2015] ; Matter of Jovon J. , 51 A.D.3d 1395, 1396, 857 N.Y.S.2d 850 [4th Dept. 2008] ).