IN RE: JOSHUA UU. and Others (2011)

Appeal from an order of the Family Court of Columbia County (Czajka, J.), entered February 17, 2010, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate the subject children to be neglected.

Respondent Eugene LL. (hereinafter respondent) and his wife, respondent Jessica XX. (hereinafter the mother), are the parents of Mikayla WW. (born in 2008) and Eugene WW. (born in 2008).   The mother also has seven other children (born between 1993 and 2005) who are the subjects of this proceeding including, as relevant here, Arianne VV. (born in 1995).   At all relevant times, respondent lived with the mother and all nine children and was, together with the mother, responsible for the children's care.

In 2008, in a neglect proceeding brought by petitioner under Family Ct. Act article 10, respondent and the mother admitted to “plac[ing] the children at imminent risk of harm to their physical, mental and emotional welfare” because their home was in a “deplorable condition” and was “not a clean and safe environment.”   That proceeding was adjourned for 12 months in contemplation of dismissal, subject to various conditions including, but not limited to, respondent's and the mother's placement under petitioner's supervision until July 2009 ¹ and their agreement to provide clean housing.

In May 2009, petitioner investigated a report that respondent had inappropriately touched Arianne in 2006, prompting petitioner to file the instant petition based on that incident and other allegations of neglect on the part of respondent and the mother.   Following fact-finding and dispositional hearings, Family Court determined that respondent and the mother had neglected the children and placed both of them under petitioner's supervision for one year.   The court also entered an order of protection requiring respondent to stay away from the subject children and their home and schools until their 18th birthdays.   This appeal by respondent ensued.²

 Family Court's determination that respondent neglected the children was based primarily on its finding that he had touched Arianne's breast area and had attempted to touch her crotch area.   Respondent argues that the only evidence adduced in support of these allegations consisted of Arianne's out-of-court statements, which were insufficiently corroborated to support the adjudication of neglect.   We disagree and, therefore, affirm.

The evidence presented by petitioner satisfied its burden of showing, by a preponderance of the evidence, that the children were neglected as defined by the Family Ct. Act (see Family Ct. Act § 1012[f][i][B];  Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004];  Matter of Shiree G. [Robert E.], 74 A.D.3d 1416, 1417, 902 N.Y.S.2d 703 [2010] ).   Arianne's maternal aunt testified that Arianne told her in 2009 that respondent had touched her breasts in the past and that she (the aunt) had relayed this information to the mother.   The mother testified that she had asked respondent if the allegation was true.   Respondent denied at trial that he had inappropriately touched Arianne.   However, his testimony reflected that, when the mother told him that, if Arianne's allegations were true and if he did it again, the mother “wouldn't want anything to do with” him, he simply replied that “it would be fine with” him.

Peter Forcucci, a caseworker employed by petitioner, also testified that, when he questioned Arianne in May 2009 during the course of his investigation of the report that respondent had inappropriately touched her, she stated that between September and December 2006 respondent had “touched her on her chest over her clothes, and then attempted to touch her genitals over her pants, but she crossed her legs, and told him no.”   The mother also testified that, although Arianne initially denied to her that respondent had inappropriately touched her, she learned that Arianne had told her mental health counselor about the touching and that, two weeks before the fact-finding hearing, Arianne also told the mother that the touching had occurred.

A child's out-of-court statements alleging abuse or neglect may be admissible in a proceeding pursuant to Family Ct. Act article 10 provided that such statements are sufficiently corroborated in order to support a finding of abuse or neglect (see Family Ct. Act § 1046[a][vi];  Matter of Nicole V., 71 N.Y.2d 112, 118–119, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ).   The “corroboration requirements of the criminal law are not applicable in article 10 proceedings, which are civil in nature” (Matter of Christina F., 74 N.Y.2d 532, 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294 [1989] ).   It is only necessary that the corroborative evidence “tend[s] to support the reliability of the previous statements” (Family Ct. Act § 1046[a][vi] ).

Here, we recognize that the mere repetition of Arianne's statement to different people does not, in and of itself, provide sufficient corroboration of such statement (see Matter of Nicole V., 71 N.Y.2d at 124, 524 N.Y.S.2d 19, 518 N.E.2d 914;  Matter of Sasha R., 24 A.D.3d 902, 903, 805 N.Y.S.2d 476 [2005] ). However, some degree of corroboration can be found in the consistency of the out-of-court repetitions (see Matter of Justin CC. [Tina CC.], 77 A.D.3d 1056, 1058, 909 N.Y.S.2d 771 [2010], lv. denied 16 N.Y.3d 702, 2011 WL 135182 [Jan. 18, 2011];  Matter of Telsa Z. [Rickey Z.-Denise Z.], 71 A.D.3d 1246, 1249–1250, 897 N.Y.S.2d 281 [2010];  Matter of Kole HH., 61 A.D.3d 1049, 1052, 876 N.Y.S.2d 199 [2009], lv. dismissed 12 N.Y.3d 898, 884 N.Y.S.2d 679, 912 N.E.2d 1058 [2009] ), as well as in respondent's admitted criminal history involving the sexual abuse of his daughter ³ (see Matter of Anita U., 185 A.D.2d 378, 380, 585 N.Y.S.2d 826 [1992];  see generally Matter of Christina F., 74 N.Y.2d at 534, 549 N.Y.S.2d 643, 548 N.E.2d 1294) and his failure to deny the allegations made by Arianne when confronted by the mother about them.

According Family Court great deference in its determination of whether the child's out-of-court statements were sufficiently corroborated to support a finding of neglect (see Matter of Christina F., 74 N.Y.2d at 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294;  Matter of Destiny UU. [Leon UU.], 72 A.D.3d 1407, 1408, 900 N.Y.S.2d 199 [2010], lv. denied 15 N.Y.3d 702, 2010 WL 2572007 [2010];  Matter of Telsa Z. [Rickey Z.-Denise Z.], 71 A.D.3d at 1250, 897 N.Y.S.2d 281), and considering the record in the light most favorable to petitioner (see Matter of Destiny UU. [Leon UU.], 72 A.D.3d at 1408, 900 N.Y.S.2d 199;  Matter of Caitlyn U., 46 A.D.3d 1144, 1146, 847 N.Y.S.2d 753 [2007] ), we conclude that the proof was sufficient to satisfy the “relatively low degree of corroborative evidence [required]” (Matter of Justin CC. [Tina CC.], 77 A.D.3d at 1057, 909 N.Y.S.2d 771;  see Matter of Nicole V., 71 N.Y.2d at 118–119, 524 N.Y.S.2d 19, 518 N.E.2d 914;  Matter of Destiny UU. [Leon UU.], 72 A.D.3d at 1408, 900 N.Y.S.2d 199;  Matter of Kole HH., 61 A.D.3d at 1052, 876 N.Y.S.2d 199;  Matter of Richard SS., 29 A.D.3d 1118, 1121, 815 N.Y.S.2d 282 [2006] ).   Thus, we discern no basis to disturb Family Court's determination on this issue.

 Furthermore, assessing the record in the light most favorable to petitioner and exercising our own factual review power (see Matter of Anita U., 185 A.D.2d at 379, 585 N.Y.S.2d 826), we are also satisfied that adequate evidence was adduced to support a finding of neglect based on allegations in the petition as to the condition of the children's home environment (see generally Family Ct. Act § 1012[f][i][B] );  (Nicholson v. Scoppetta, 3 N.Y.3d at 368, 787 N.Y.S.2d 196, 820 N.E.2d 840;  Matter of Shiree G. [Robert E.], 74 A.D.3d at 1417, 902 N.Y.S.2d 703;  Matter of Mary MM. [Leuetta NN.], 72 A.D.3d 1427, 1428–1429, 899 N.Y.S.2d 483 [2010], lv. denied 15 N.Y.3d 703, 2010 WL 2606066 [2010] ).   Respondent and the mother admitted in the prior neglect proceeding that the children were at imminent risk of harm due to the condition of their home.   In the instant proceeding, the mother again admitted that the home was not safe for the youngest children in that the older children left pencils and scissors on the floor where the younger children crawled.   In addition, Forcucci described the home as “dirty [with] a foul odor,” and testified that the children “were often in dirty clothes, and their faces were usually somewhat dirty” and that he had observed partially-eaten food on the railing and fence outside the house.

Respondent's remaining contentions have been considered and are either academic or without merit.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   The record before us includes a petition dated June 12, 2009 to extend the period of supervision.   It appears that this petition was heard with the instant proceeding.

2.   Although respondent's appeal is technically premature because he appealed from Family Court's decision rendered at the November 2009 dispositional hearing rather than from the dispositional order entered in February 2010 (see CPLR 5512[a];  Family Ct. Act § 165), in the exercise of our discretion we will treat the notice of appeal as valid (see CPLR 5520[c];  Matter of Heaven C. [Julia B.], 71 A.D.3d 1301, 1302 n., 898 N.Y.S.2d 281 [2010];  Matter of Jesse XX. [Marilyn ZZ.], 69 A.D.3d 1240, 1242 n., 893 N.Y.S.2d 686 [2010] ).

3.   In the order of fact-finding and disposition, Family Court noted that respondent had a history of sexual abuse, having previously been convicted of rape in the third degree and incest.   The record reflects that respondent pleaded guilty to and was convicted in 1988 of charges of rape and incest involving his daughter from a prior relationship, for which he was incarcerated for three years.

STEIN, J.

MERCURE, J.P., SPAIN and MALONE JR., JJ., concur.