IN RE: CHRISTOPHER L. (Anonymous). (2005)

In a proceeding pursuant to Family Court Act article 10, the mother appeals, as limited by her brief, from stated portions of (1) a fact-finding order of the Family Court, Suffolk County (Freundlich, J.), entered May 5, 2004, which, after a hearing, inter alia, found that she severely abused her child, and (2) a dispositional order of the same court dated June 7, 2004, which, after a dispositional hearing, inter alia, placed the subject child in the custody of the Suffolk County Department of Social Services.

ORDERED that the appeal from the fact-finding order is dismissed, without costs or disbursements, as that order was superseded by the dispositional order;  and it is further,

ORDERED that the order dated June 7, 2004, is affirmed insofar as appealed from, without costs or disbursements.

 A child's out-of-court statements relating to an allegation of abuse may, if adequately corroborated by evidence tending to establish their reliability, support a finding of abuse (see Family Ct. Act § 1046[a][vi];  Matter of Christina F., 74 N.Y.2d 532, 549 N.Y.S.2d 643, 548 N.E.2d 1294;  Matter of Frank F., 12 A.D.3d 601, 784 N.Y.S.2d 386;  Matter of Jaclyn P., 179 A.D.2d 646, 647, 578 N.Y.S.2d 252, affd. 86 N.Y.2d 875, 635 N.Y.S.2d 169, 658 N.E.2d 1042, cert. denied 516 U.S. 1093, 116 S.Ct. 816, 133 L.Ed.2d 760;  cf. Matter of Danielle L., 307 A.D.2d 294, 762 N.Y.S.2d 285).   The rule requiring corroboration is flexible, and any other evidence tending to support the reliability of the child's statements may be sufficient corroboration (see Matter of Nicole V., 71 N.Y.2d 112, 124, 524 N.Y.S.2d 19, 518 N.E.2d 914;  Matter of Alena D., 125 A.D.2d 753, 509 N.Y.S.2d 175).   The Family Court, as the trier of fact, has considerable discretion in determining whether the child's statements are sufficiently corroborated and whether the record as a whole supports a finding of abuse (see Matter of Christina F., supra at 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294;  Matter of Commr. of Social Servs. [Tanya C.] v. Evelyn R., 217 A.D.2d 697, 698, 630 N.Y.S.2d 338).

Here, the determination of severe abuse was established by the child's out-of-court statement, corroborated by the testimony of a resident of the house where the appellant resided with the child (see Matter of Christina F., supra at 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294;  Matter of Nicole V., supra at 118, 524 N.Y.S.2d 19, 518 N.E.2d 914;  Matter of Brittany K., 308 A.D.2d 585, 765 N.Y.S.2d 254).   In addition, the Family Court properly drew a negative inference from the appellant's failure to testify (see Matter of Joseph C., 297 A.D.2d 673, 747 N.Y.S.2d 182;  Matter of Jenny N., 262 A.D.2d 951, 692 N.Y.S.2d 554).

Under the circumstances, the Family Court providently exercised its discretion in not compelling the child to testify (see Family Ct. Act § 1011;  Matter of Jennifer G., 261 A.D.2d 823, 687 N.Y.S.2d 844;  Matter of Joseph B., 207 A.D.2d 885, 616 N.Y.S.2d 646) but (see Matter of Tamara G., 295 A.D.2d 194, 745 N.Y.S.2d 6).

Any evidence tending to support the appellant's position that the allegations of abuse were fabricated was relevant.   However, under the circumstances of this case, the exclusion of certain evidence proffered by the appellant was harmless error (see Family Ct. Act § 1046[a][vii];  Matter of Brian McM., 193 A.D.2d 121, 124, 602 N.Y.S.2d 416).

The appellant's remaining contentions are without merit.