Opinion
530989
07-07-2022
In the MATTER OF OLIVIA RR., Alleged to be an Abused Child. Warren County Department of Social Services, Respondent; v. Paul RR., Appellant.
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant. Warren County Department of Social Services, Lake George (Sommer–Lynn Cross of counsel), for respondent. Karen R. Crandall, Schenectady, attorney for the child.
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.
Warren County Department of Social Services, Lake George (Sommer–Lynn Cross of counsel), for respondent.
Karen R. Crandall, Schenectady, attorney for the child.
Before: Egan Jr., J.P., Clark, Aarons, Fisher and McShan, JJ.
MEMORANDUM AND ORDER
Clark, J. Appeal from an order of the Family Court of Warren County (Wilson, J.), entered January 8, 2020, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate the subject child to be abused.
Respondent is the father of the subject child (born in 2013). In 2018, following an investigation into a report made to the Statewide Central Register of Child Abuse and Maltreatment, petitioner commenced this Family Ct Act article 10 proceeding alleging that respondent abused the child by perpetrating acts of sexual misconduct against her. After a fact-finding hearing, Family Court found that respondent had committed sexual abuse in the first degree against the child and adjudicated the child to have been abused by respondent (see Family Ct Act § 1012[e][iii][A] ; Penal Law § 130.65 ). Respondent appeals.
Respondent argues that the evidence presented at the fact-finding hearing was legally insufficient to support Family Court's finding of abuse. As relevant here, to support a finding of sexual abuse in a Family Ct Act article 10 proceeding, the petitioner must prove by a preponderance of the evidence that a parent committed, against his or her child, an act constituting a sexual crime under Penal Law article 130 (see Family Ct Act § 1012[e][iii][A] ; Matter of Isabella E. [James E.], 195 A.D.3d 1096, 1098, 149 N.Y.S.3d 646 [2021] ; Matter of Kaydence O. [Destene P.], 162 A.D.3d 1131, 1132, 77 N.Y.S.3d 793 [2018] ). To meet this burden, petitioner offered testimony from one of its caseworkers, who stated that she observed two forensic interviews between the child and State Police investigators. As reflected in the caseworker's testimony, as well as her notes from the first interview, which were admitted into evidence, the child reported that respondent tickled her breasts and vagina on multiple occasions both under and over her clothing and that the tickling made her feel bad. The caseworker testified that the child was asked the same general questions during the second interview and that the child "again disclosed sex[ual] abuse by [respondent]."
The child's out-of-court statements were admissible in evidence but, to serve as the basis for a finding of abuse, required corroboration by "[a]ny other evidence tending to support the reliability of the [child's] previous statements" ( Family Ct Act § 1046[a][vi] ; see Matter of Kylee R. [David R.], 154 A.D.3d 1089, 1089–1090, 61 N.Y.S.3d 738 [2017], lv denied 30 N.Y.3d 911, 2018 WL 773094 [2018] ). "A relatively low degree of corroborative evidence is sufficient to meet this threshold" ( Matter of Justin CC. [Tina CC.], 77 A.D.3d 1056, 1057, 909 N.Y.S.2d 771 [2010] [citations omitted], lv denied 16 N.Y.3d 702, 2011 WL 135182 [2011] ; see Matter of Josiah P. [Peggy P.], 197 A.D.3d 1365, 1367, 153 N.Y.S.3d 645 [2021] ; Matter of Lily BB. [Stephen BB.], 191 A.D.3d 1126, 1127, 142 N.Y.S.3d 219 [2021], lv dismissed 37 N.Y.3d 927, 146 N.Y.S.3d 868, 169 N.E.3d 1231 [2021] ). To that end, a State Police investigator testified that he interviewed respondent as part of the investigation and that, during the course of that interview, respondent "admitted to a couple [of] things ... that were concerning," including that he had previously had sexual thoughts about the child "touching his penis and him touching her sexually." The investigator additionally testified that respondent admitted that he had become erect while the child sat and wiggled on his lap and that he would leave her on his lap for a few seconds when that occurred. Respondent testified at the fact-finding hearing and maintained that any touching of the child's private parts was accidental or incidental to playing with the child. However, respondent admitted during his testimony that he did get an erection once or twice when the child was climbing on his lap, although he insisted that his arousal was not intentional.
Cognizant that "the reliability of the corroboration, as well as issues of credibility, are matters entrusted to the sound discretion of Family Court" (Matter of Justin CC. [Tina CC.], 77 A.D.3d at 1057, 909 N.Y.S.2d 771 ), we discern no abuse of discretion in Family Court's finding that the child's out-of-court statements were corroborated by respondent's admissions, both to the investigator and during his testimony, as well as the child's consistent repetition of such allegations (see Matter of Isabella I. [Ronald I.], 180 A.D.3d 1259, 1262, 120 N.Y.S.3d 495 [2020] ; Matter of Dylan R. [Jeremy T.], 137 A.D.3d 1492, 1494, 28 N.Y.S.3d 482 [2016], lv denied 27 N.Y.3d 912, 2016 WL 4482966 [2016] ; Matter of Brooke KK. [Paul KK.], 69 A.D.3d 1059, 1061, 892 N.Y.S.2d 671 [2010] ). Deferring to Family Court's credibility determinations, and considering that sexual gratification may be inferred from respondent's conduct, we agree with Family Court that petitioner proved the allegations of sexual abuse against respondent by a preponderance of the evidence (see Family Ct Act § 1012[e][iii][A] ; Penal Law § 130.65[3] ; Matter of Lily BB. [Stephen BB.], 191 A.D.3d at 1128, 142 N.Y.S.3d 219 ; Matter of M.W. [Mohammad W.], 172 A.D.3d 879, 880–881, 100 N.Y.S.3d 287 [2019] ; Matter of Brooke KK. [Paul KK.], 69 A.D.3d at 1061, 892 N.Y.S.2d 671 ).
Respondent further takes issue with the representation afforded to the child, arguing that the attorney for the child improperly substituted her judgment for that of the child. However, respondent failed to preserve his challenge by making an application in Family Court for removal of the attorney for the child (see Matter of Susan II. v. Laura JJ., 176 A.D.3d 1325, 1329, 112 N.Y.S.3d 798 [2019], lv denied 34 N.Y.3d 909, 2020 WL 728736 [2020] ; Matter of Emmanuel J. [Maximus L.], 149 A.D.3d 1292, 1297, 52 N.Y.S.3d 154 [2017] ; Matter of Elniski v. Junker, 142 A.D.3d 1392, 1393, 38 N.Y.S.3d 478 [2016] ). In any event, even if respondent's contention was properly preserved, we would find it to be without merit (see generally Matter of Alyson J. [Laurie J.], 88 A.D.3d 1201, 1203, 931 N.Y.S.2d 741 [2011], lv denied 18 N.Y.3d 803, 2012 WL 44346 [2012] ). In light of all of the foregoing, there is no basis upon which to disturb Family Court's determination.
Egan Jr., J.P., Aarons, Fisher and McShan, JJ., concur.
ORDERED that the order is affirmed, without costs.