Opinion
1086 CAF 20-00951
12-23-2021
In the MATTER OF BRIANNA E. and Brooklynn H. Jefferson County Department of Social Services, Petitioner-Respondent; v. Jeremiah H., Respondent-Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT. KRISTOPHER STEVENS, WATERTOWN, FOR PETITIONER-RESPONDENT. KIMBERLY A. WOOD, WATERTOWN, ATTORNEY FOR THE CHILD.
PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT.
KRISTOPHER STEVENS, WATERTOWN, FOR PETITIONER-RESPONDENT.
KIMBERLY A. WOOD, WATERTOWN, ATTORNEY FOR THE CHILD.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, 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 of fact-finding and disposition that, inter alia, determined that he abused his stepdaughter.
Contrary to respondent's contention, Family Court's determination is supported by the requisite preponderance of the evidence (see Family Ct Act § 1046 [b] [i] ; 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] ). "A child's out-of-court statements may form the basis for a finding of [abuse] as long as they are sufficiently corroborated by [any] other evidence tending to support their reliability," and 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" ( Nicholas J.R. , 83 A.D.3d at 1490, 922 N.Y.S.2d 679 [internal quotation marks omitted]; see Matter of Crystal S. [Patrick P.] , 193 A.D.3d 1353, 1354, 143 N.Y.S.3d 269 [4th Dept. 2021] ). Here, the out-of-court statements of the child were sufficiently corroborated by, inter alia, the testimony of petitioner's validation expert, a psychologist who evaluated the child and opined that the child's consistent statements made to the psychologist, an investigator, and a therapist were credible and consistent with those of a child who has been abused (see Matter of Lydia C. [Albert C.] , 89 A.D.3d 1434, 1435, 933 N.Y.S.2d 147 [4th Dept. 2011] ; Matter of Elizabeth G. , 255 A.D.2d 1010, 1011-1012, 680 N.Y.S.2d 32 [4th Dept. 1998], lv dismissed 93 N.Y.2d 848, 688 N.Y.S.2d 494, 710 N.E.2d 1093 [1999], lv denied 93 N.Y.2d 814, 697 N.Y.S.2d 561, 719 N.E.2d 922 [1999] ). Furthermore, although "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 respondent's sexual conduct enhances the reliability of those out-of-court statements" ( Matter of Yorimar K.-M. , 309 A.D.2d 1148, 1149, 765 N.Y.S.2d 283 [4th Dept. 2003] [internal quotation marks omitted]; see Nicholas J.R. , 83 A.D.3d at 1490-1491, 922 N.Y.S.2d 679 ).
We likewise reject respondent's contention that the court erred in determining that he derivatively neglected his daughter. Contrary to respondent's contention, "[t]he record supports the determination of the court that [his] sexual abuse of [his stepdaughter] demonstrated fundamental flaws in [his] understanding of the duties of parenthood and warranted a finding of derivative neglect with respect to [his daughter]" ( Matter of Lylly M.G. [Theodore T.] , 121 A.D.3d 1586, 1588, 992 N.Y.S.2d 834 [4th Dept. 2014], lv denied 24 N.Y.3d 913, 2015 WL 145015 [2015] ; see Matter of Skyler D. [Joseph D.] , 185 A.D.3d 1515, 1517, 127 N.Y.S.3d 677 [4th Dept. 2020] ; Matter of Michelle M. , 52 A.D.3d 1284, 1284, 861 N.Y.S.2d 542 [4th Dept. 2008] ).
By failing to object to certain validation testimony of petitioner's expert at trial, respondent failed to preserve for our review his contention that the court erred in allowing the expert to testify as to the credibility of the child's disclosure (see generally Yorimar K.-M. , 309 A.D.2d at 1148, 765 N.Y.S.2d 283 ).
We have considered respondent's remaining contention regarding the sufficiency of the court's decision and conclude that it lacks merit.