Opinion
57 CAF 19–00150
04-24-2020
In the MATTER OF JAMES L.H. Oswego County Department of Social Services, Petitioner–Respondent; v. Lisa H. and Jason H., Respondents–Appellants.
ROBERT J. GALLAMORE, OSWEGO, FOR RESPONDENT–APPELLANT LISA H. DAVIS LAW OFFICE PLLC, OSWEGO (STEPHANIE N. DAVIS OF COUNSEL), FOR RESPONDENT–APPELLANT JASON H. JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER–RESPONDENT. ANDREW S. GREENBERG, SYRACUSE, ATTORNEY FOR THE CHILD.
ROBERT J. GALLAMORE, OSWEGO, FOR RESPONDENT–APPELLANT LISA H.
DAVIS LAW OFFICE PLLC, OSWEGO (STEPHANIE N. DAVIS OF COUNSEL), FOR RESPONDENT–APPELLANT JASON H.
JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER–RESPONDENT.
ANDREW S. GREENBERG, SYRACUSE, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, 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 father and respondent stepmother appeal from an order that adjudged that the subject child was an abused child. We affirm.
Contrary to respondents' contentions, Family Court's finding that they sexually abused the child is supported by the requisite preponderance of the evidence (see Family Ct Act § 1046[b][i] ; see 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, 930 N.Y.S.2d 552, 954 N.E.2d 1178 [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" ( 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 ..., and [t]he Legislature has expressed a clear intent that a relatively low degree of corroborative evidence is sufficient in abuse proceedings" ( Nicholas J.R. , 83 A.D.3d at 1490, 922 N.Y.S.2d 679 [internal quotation marks omitted] ).
Here, the out-of-court statements of the child were sufficiently corroborated by the evidence that the father had sexually abused his other child (see Nicole V. , 71 N.Y.2d at 118, 524 N.Y.S.2d 19, 518 N.E.2d 914 ), the child's "age-inappropriate knowledge of sexual matters" ( Matter of Brooke T. [Justin T.] , 156 A.D.3d 1410, 1411, 67 N.Y.S.3d 377 [4th Dept. 2017] ), the testimony of the child's play therapist that the child's behavior following the alleged abuse was consistent with that of a child who has been sexually abused (see Matter of Lydia C. [Albert C.] , 89 A.D.3d 1434, 1435, 933 N.Y.S.2d 147 [4th Dept. 2011] ), and the opinions of the child's play and trauma therapists that the child's out-of-court statements were credible and consistent in describing the sexual conduct (see id. ). Furthermore, "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] ). In addition, "[t]he fact that the child[ ] at times recanted the allegations of abuse does not render [his] initial statements incredible as a matter of law ..., particularly in view of the evidence that the child[ ] recanted" as a result of prompting by the father ( Matter of Shawn P. , 266 A.D.2d 907, 908, 697 N.Y.S.2d 901 [4th Dept. 1999], lv denied 94 N.Y.2d 760, 706 N.Y.S.2d 81, 727 N.E.2d 578 [2000] ). The court, based principally upon the testimony of the child's therapists, credited the child's out-of-court statements disclosing the abuse, and we conclude that there is no basis on this record to disturb the court's resolution of credibility issues (see Matter of Lakeesha R. , 229 A.D.2d 965, 965–966, 644 N.Y.S.2d 944 [4th Dept. 1996] ).