Opinion
938 CAF 22-01142
12-22-2023
In the MATTER OF LYNDA M., Maureen C., and Neveah M. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. Mark M., Respondent-Appellant, (And Erica C., Respondent).
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (ERIN WELCH FAIR OF COUNSEL), FOR PETITIONER-RESPONDENT. COURTNEY S. RADICK, OSWEGO, ATTORNEY FOR THE CHILDREN.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (ERIN WELCH FAIR OF COUNSEL), FOR PETITIONER-RESPONDENT.
COURTNEY S. RADICK, OSWEGO, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., BANNISTER, MONTOUR, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order of fact-finding and disposition determining, following a hearing, that he sexually abused his eldest daughter (daughter) and derivatively abused his two other children.
We reject the father's contention that Family Court's finding of sexual abuse is not supported by the requisite preponderance of the evidence (see Family Ct Act § 1046 [b] [i] ). " ‘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’ " ( Matter of Crystal S. [Patrick P.] , 193 A.D.3d 1353, 1354, 143 N.Y.S.3d 269 [4th Dept. 2021] ; see § 1046 [a] [vi] ). Here, the daughter's out-of-court statements were sufficiently corroborated by her "age-inappropriate knowledge of sexual conduct" ( Matter of William J.B. v. Dayna L.S. , 158 A.D.3d 1223, 1224, 70 N.Y.S.3d 265 [4th Dept. 2018] [internal quotation marks omitted]; see Matter of Skyler D. [Joseph D.] , 185 A.D.3d 1515, 1516, 127 N.Y.S.3d 677 [4th Dept. 2020] ). Moreover, the statements made to the police by the daughter's cousin also provided sufficient cross-corroboration inasmuch as the statements regarding his sexual abuse by the father "tend to support the statements of [the daughter] and, viewed together, give sufficient indicia of reliability to each [child's] out-of-court statements" ( Matter of Nicole V. , 71 N.Y.2d 112, 124, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ; see Matter of Elizabeth G. , 255 A.D.2d 1010, 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] ). Additionally, the same cousin stated that he had observed the father abuse the daughter (see generally Elizabeth G. , 255 A.D.2d at 1012, 680 N.Y.S.2d 32 ).
We agree with the father that the court erred in admitting in evidence that portion of the police report referring to some of the results of the father's polygraph examination and allowing a detective to testify regarding the same (see Matter of Charles M.O. v. Heather S.O. , 52 A.D.3d 1279, 1279, 860 N.Y.S.2d 773 [4th Dept. 2008] ; Matter of Stephanie B. , 245 A.D.2d 1062, 1063, 667 N.Y.S.2d 174 [4th Dept. 1997] ). Nonetheless, we conclude that the error is harmless (see Charles M.O. , 52 A.D.3d at 1279, 860 N.Y.S.2d 773 ; Matter of Daniel R v. Noel R , 195 A.D.2d 704, 708, 600 N.Y.S.2d 314 [3d Dept. 1993] ).
Finally, we have reviewed the father's remaining contentions and conclude that they lack merit.