IN RE: DEZARAE T. and Others

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: DEZARAE T. and Others, Alleged to be Abused Children. Schoharie County Department of Social Services, Petitioner; Lee V., Respondent. v. Christine E. Nicolella et al., as Attorneys for the Children, Appellants.

Decided: October 31, 2013

Before: STEIN, J.P., McCARTHY, SPAIN and EGAN JR., JJ. Christine E. Nicolella, Delanson, attorney for the child, appellant. Lara P. Barnett, Schenectady, attorney for the children, appellant. Nicolas J. Grasso, Schenectady, for Lee V., respondent.

Appeal from an order of the Family Court of Schoharie County (Bartlett III, J.), entered January 27, 2012, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to be abused.

Danielle U. (hereinafter the mother) and Timothy U. (hereinafter the father) are the parents of Kaelynn U. (born in 2006), Dezarae T. (born in 2000) and Justin U. (born in 2002). The parents and children resided together until June 2010, when the parents separated and the mother and children moved in with respondent, the mother's boyfriend, and their newborn daughter, Aaryanna U. In November 2010, petitioner commenced this proceeding to adjudicate each of the children to be abused based upon allegations that respondent had sexually abused Kaelynn by touching her underneath her clothing while sitting on a couch at their home in the summer of 2010 when she was four years old, while her mother and baby sister were asleep. After a fact-finding hearing, Family Court held that petitioner failed to meet its burden to demonstrate that respondent abused Kaelynn and dismissed the petition as to all of the children. The attorneys for the children now appeal, and we affirm.1

At the hearing, Kaelynn did not testify and no medical evidence of abuse was submitted. The only proof of abuse consisted of the testimony of four people to whom she had disclosed abuse by respondent, and the observations of her demeanor during the period in which the disclosures occurred.

Family Court properly determined that petitioner failed to prove abuse of Kaelynn by a preponderance of the evidence, as the record contains insufficient evidence to corroborate Kaelynn's allegations. Significantly here, a child's uncorroborated unsworn allegations of abuse alone are insufficient to sustain a finding of abuse (see Family Ct Act § 1046[a][vi] ) and, although “a child's out-of-court statement ‘may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient in abuse proceedings' “ (Matter of Sasha R ., 24 A.D.3d 902, 903 [2005], quoting Matter of Joshua QQ., 290 A.D.2d 842, 843 [2002]; see Matter of Miranda HH. [Thomas HH.], 80 A.D.3d 896, 898 [2011] ), there is “a threshold of reliability that the evidence must meet” (Matter of Zachariah VV., 262 A.D.2d 719 [1999], lv denied 94 N.Y.2d 756 [1999] ). “Whether this corroboration requirement has been satisfied is a ‘fine judgment’ entrusted in the first instance to Family Court, which has the advantage of having heard and seen the various witnesses” (Matter of Jared XX., 276 A.D.2d 980, 981 [2000], quoting Matter of Christina F., 74 N.Y.2d 532, 536 [1989]; see Matter of Miranda HH. [Thomas HH.], 80 A.D.3d at 899, 914 N.Y.S.2d 760; Matter of Justin CC. [Tina CC.], 77 A.D.3d 1056, 1057 [2010], lv denied 16 N.Y.3d 702 [2011] ).

Under established law, Kaelynn's repetition of the allegations of abuse to the testifying witnesses, however consistent and believable, is not sufficient to corroborate these prior out-of-court statements (see Matter of Nicole V., 71 N.Y.2d 112, 124 [1987]; Matter of Zachariah VV., 262 A.D.2d at 720, 691 N.Y.S.2d 631; Matter of Keala XX., 217 A.D.2d 745, 746 [1995] ). Petitioner presented no expert testimony to “objectively validate [Kaelynn's] account” or to “relate[ ] any of her past or present conduct or characteristics to the alleged sexual abuse” (Matter of Sasha R., 24 A.D.3d at 903, 805 N.Y.S.2d 476; see Matter of Zachariah VV., 262 A.D.2d at 720, 691 N.Y.S.2d 631; Matter of Vincent I., 205 A.D.2d 878, 879 [1994] ). While a police investigator who interviewed Kaelynn testified that he conducted a “truth versus lie” inquiry of her and concluded that she understood the consequences of lying, he did not explain his methodology for reaching this conclusion nor did he relate whether her account fit any profile for truthful testimony from abused children (see Matter of Kelly F., 206 A.D.2d 227, 230 [1994]; compare Matter of Nicole V., 71 N.Y.2d at 120–122, 524 N.Y.S.2d 19, 518 N.E.2d 914; Matter of Katje YY., 233 A.D.2d 695, 696 [1996] ). Moreover, there was no physical evidence of sexual abuse (see Matter of Sasha R., 24 A.D.3d at 903, 805 N.Y.S.2d 476; Matter of Keala XX., 217 A.D.2d at 746, 629 N.Y.S.2d 331), and Kaelynn-in light of her young age-did not give sworn testimony nor was she questioned in camera (compare Matter of Christina F., 74 N.Y.2d 532, 537 [1989]; Matter of Miranda HH. [Thomas HH.], 80 A.D.3d at 898–899, 914 N.Y.S.2d 760; Matter of Justin CC. [Tina CC.], 77 A.D.3d at 1058, 909 N.Y.S.2d 771; Matter of Brandi U., 47 A.D.3d 1103, 1104 [2008] ).

Although several witnesses consistently described Kaelynn's upset demeanor, “in the absence of any expert opinion connecting this evidence with the alleged sexual abuse,” this testimony was insufficient to corroborate the allegations (Matter of Zachariah VV., 262 A.D.2d at 720, 691 N.Y.S.2d 631; see Matter of Keala XX., 217 A.D.2d at 746, 629 N.Y.S.2d 331). As noted by Family Court, the record contains no reliable means of distinguishing between trauma that Kaelynn may have suffered as a result of, among other causes, parental neglect, her parents' separation and witnessing domestic violence, from “professionally recognized indicators of sexual abuse” (Matter of Zachariah VV., 262 A.D.2d at 720, 691 N.Y.S.2d 631).

Finally, we reject the contention of the attorneys for the children that Family Court erred in failing to set forth the grounds for its decision, as required (see CPLR 4213[b]; Family Ct Act § 1051[c]; Matter of Anita U., 185 A.D.2d 378, 379 [1992] ). To that end, the court “need not set forth evidentiary facts, it must state ultimate facts: that is, those facts upon which the rights and liabilities of the parties depend” (Matter of Jose L. I., 46 N.Y.2d 1024, 1025–1026 [1979]; see Matter of Anita U., 185 A.D.2d at 379, 585 N.Y.S.2d 826; Matter of Kyesha A., 176 A.D.2d 381, 382 [1991] ). Here, the court summarized all relevant testimony and made certain credibility determinations, discussed the applicable law regarding proof of abuse and the need for corroboration of a child's disclosures, and made its determination that, based upon the credible testimony and evidence presented, the corroboration requirement was not satisfied. We find that the court sufficiently complied with Family Ct Act § 1051(c) and CPLR 4213(b) (see Matter of Jose L. I., 46 N.Y.2d at 1025–1026, 416 N.Y.S.2d 537, 389 N.E.2d 1059; Matter of Anita U., 185 A.D.2d at 379, 585 N.Y.S.2d 826; Matter of Kyesha A., 176 A.D.2d at 382, 574 N.Y.S.2d 89).

ORDERED that the order is affirmed, without costs.

SPAIN, J.

STEIN, J.P., McCARTHY and EGAN JR., JJ., concur.

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