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In re Lee-Ann W.

Supreme Court of New York, Third Department

June 15, 2017

In the Matter of LEE-ANN W. and Another, Alleged to be Abused and/or Neglected Children. SULLIVAN COUNTY DEPARTMENT OF FAMILY SERVICES, Respondent; and JAMES U., Appellant.

          Calendar Date: February 14, 2017

          Ivy Schildkraut, Monticello, for appellant.

          Constantina Hart, Sullivan County Department of Social Services, Monticello, for respondent.

          Marcia Heller, Rock Hill, attorney for the children.

          Before: Garry, J.P., Egan Jr., Rose, Devine and Aarons, JJ.


          GARRY, J.P.

         Appeal from an order of the Family Court of Sullivan County (McGuire, J.), entered July 24, 2014, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to be abused and/or neglected.

         Respondent (hereinafter the father) is the father of a daughter (born in 2008) and a son (born in 2012). The relationship between the father and the children's mother began to deteriorate before the son's birth and, in March 2013, the mother left with the children for a trip to Puerto Rico [1]. According to the father, the trip was supposed to last just one week. The mother extended her stay, and the father made two trips to Puerto Rico; in May 2013, after it became apparent that their difficulties could not be resolved, he commenced a proceeding seeking custody of the children. According to the mother, she left for Puerto Rico believing that she and the father had previously reached a verbal agreement permitting her to have custody of the children in Puerto Rico with the understanding that he would have visitation - either there or at one of the father's properties in Florida - and that no formal legal proceeding would be necessary. On the day after the mother was served with the father's custody petition in Puerto Rico, she took the daughter, then 4½ years old, to two local police stations, alleging that the father had been sexually abusing the child. [2]

         After Family Court ordered her to do so, the mother returned to New York. She then filed a hotline report, which prompted the commencement of this abuse and neglect proceeding. She also cross-petitioned for custody and filed a family offense petition against the father. The subject petitions were joined, and, following a hearing on various dates between July 2013 and November 2013, the court found that petitioner had made out a prima facie case of abuse and/or neglect. A fact-finding hearing was then conducted on all of the petitions; the testimony from the prior hearings was incorporated therein and additional witnesses were called, including a psychologist who evaluated the children, the father and the mother. Following the hearing, Family Court issued a bench decision, which was subsequently reduced to a written order. As pertinent here, this order granted petitioner's application, finding that the father had abused and neglected the daughter and, in so doing, had derivatively neglected the son. Family Court then conducted a dispositional hearing, and the father appeals from the resulting order. [3]

         The father and the attorney for the children contend that Family Court's determination that the father abused and/or neglected the children is not supported by a sound and substantial basis in the record. Specifically, they argue that the daughter's statements regarding the sexual abuse allegedly perpetrated by the father were not sufficiently corroborated. Pursuant to Family Ct Act § 1046 (a) (vi), "previous statements made by [a] child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect" (see Matter of Stephanie RR. [Pedro RR.], 140 A.D.3d 1237, 1238 [2016]; Matter of Dezarae T. [Lee V.], 110 A.D.3d 1396, 1397 [2013]). Here, a State Police investigator testified that the daughter, using her own vocabulary, said that the father bathed with her while both of them were naked, and that during the baths the father would sometimes sit her on his lap, causing his penis to touch her "butt." The investigator further stated that the daughter said that the father put his finger on her vagina and "butt, " washed her vagina using his hand and soap and, finally, that the father placed her on a bed, spread her legs, smelled her vagina and put his nose on it [4]. Similar testimony was offered by the daughter's counselor, who testified that, when she first met the daughter in September 2013, the daughter spontaneously stated, "My father touched my private parts." One of petitioner's caseworkers, who was present for the investigator's interview with the daughter, also testified that the daughter said that the father walked around the house "without any clothes on."

         The mother testified that she witnessed the father and the daughter bathing together naked in the tub on numerous occasions, but that she never saw him place the child on his lap. She said that she asked the father to stop bathing with the child, but that he did not do so until after his sister instructed him to stop. The mother further stated that she often saw the father's hands come into contact with the daughter's genitals and buttocks when he was cleaning the child after she had used the bathroom, but not at any other time. The mother gave inconsistent testimony as to whether she had seen the father touch his nose to the daughter's vagina; when she was first asked if she had ever seen this occur, she responded unequivocally that she had not, but later in the hearing she said that she had seen the father place his nose "right up against" her daughter's vagina on two occasions.

         The father admitted to some of the underlying conduct, but asserted that it was nonsexual. He testified that he indeed bathed naked with the daughter, sometimes appeared in front of her without clothes, sniffed her buttocks from a distance following a bowel movement or diaper change to see if she required additional cleaning and, when necessary, cleaned her buttocks with soap and water. The father denied that his penis ever came into contact with any portion of the daughter's anatomy, or that he ever digitally penetrated the daughter's vagina or anus or inappropriately touched her in any fashion. Based upon the foregoing testimony, Family Court found that the father's testimony describing his own conduct provided sufficient corroboration for the daughter's statements and that petitioner thus established sexual abuse and neglect by a preponderance of the evidence.

         We agree with Family Court that petitioner met its burden to establish neglect. In this regard, "petitioner bore the burden of demonstrating, by a preponderance of the evidence, that the [daughter's] physical, mental or emotional condition was impaired or was in imminent danger of becoming impaired as a result of [the father's] failure to exercise a minimum degree of care" (Matter of Choice I. [Warren I.], 144 A.D.3d 1448, 1449 [2016]; see Matter of Evelyn EE. v Ayesha FF., 143 A.D.3d 1120, 1125 [2016], lv denied 28 N.Y.3d 913');">28 N.Y.3d 913 [2017]). The father's admissions regarding his conduct in bathing with the daughter, smelling her buttocks and being naked in her presence served to corroborate her statements about this conduct. Family Court wholly rejected the credibility of the father's explanations for his motivations in this behavior, and found that such conduct was improper and damaging to the daughter. According the appropriate deference to the court's opportunity to hear the testimony and observe the mother's and father's demeanor over the many months consumed by the hearings in this matter, we find that the neglect determination is supported by a sound and substantial basis in the record (see Matter of A.G., 253 A.D.2d 318, 326 [1999]). We likewise find the requisite record support for the court's determination that the son was derivatively neglected (see generally Matter of Evelyn EE. v Ayesha FF., 143 A.D.3d at 1125).

         We reach a different conclusion, however, as to the adjudication of sexual abuse. The purpose of the requirement that a child's out-of-court statements must be corroborated by some other evidence in order to support a finding of abuse is to establish the reliability of such hearsay statements (see Family Ct Act § 1046 [a] [vi]; Matter of Nicole V., 71 N.Y.2d 112, 117-118 [1987]; Matter of Katrina CC. [Andrew CC.], 118 A.D.3d 1064, 1065 [2014]). A child's mere repetition of an accusation to others, "however consistent and believable, is not sufficient to corroborate [his or her] prior out-of-court statements" (Matter of Dezarae T. [Lee V.], 110 A.D.3d at 1398; see Matter of Leighann W. v Thomas X., 141 A.D.3d 876, 878 [2016]; Matter of Dylynn V. [Bradley W.], 136 A.D.3d 1160, 1162 [2016]; Matter of Keala XX., 217 A.D.2d 745, 746 [1995]). "The corroboration requirement is not demanding and may be satisfied by any other evidence tending to support the reliability of the child's previous statements" (Matter of Leighann W. v Thomas X., 141 A.D.3d at 878 [internal quotation marks, brackets and citation omitted]; see Matter of Destiny C. [Goliath C.], 127 A.D.3d 1510, 1511 [2015], lvs denied25 N.Y.3d 911');">25 N.Y.3d 911 [2015]). Nevertheless, "there is a threshold of ...

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