Fadi R., Appellant.  (Appeal No. 1.) v. <<

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

Matter of RHIANNA R. and Nicole R. Onondaga County Department of Social Services, Respondent, Fadi R., Appellant.  (Appeal No. 1.)

Decided: December 31, 1998

Present:  PINE, J.P., HAYES, WISNER, PIGOTT, Jr., and BOEHM, JJ. Hiscock Legal Aid Society by Robert P. Rickert, Syracuse, for Respondent-Appellant. Onondaga County Department of Law (Judith Alderman, of counsel), Syracuse, for Petitioner-Respondent. Douglas Hawkins, Syracuse, for Law Guardian.

 Family Court's determination that respondent sexually abused his daughter Rhianna (see, Family Ct. Act § 1012[e][iii] ) and that, as a consequence, his other daughter Nicole is a neglected child within the meaning of Family Court Act § 1012(f)(i)(B) is supported by a preponderance of the evidence (see, Family Ct. Act § 1046[b][i] ).  “Unsworn out-of-court statements of the victim may be received and, if properly corroborated, will support a finding of abuse or neglect” (Matter of Nicole V., 71 N.Y.2d 112, 117-118, 524 N.Y.S.2d 19, 518 N.E.2d 914, citing Family Ct. Act § 1046[a] [vi] ).   The out-of-court statements of Rhianna were amply corroborated by her unsworn but cross-examined testimony taken in camera (see, Matter of Christina F., 74 N.Y.2d 532, 535, 549 N.Y.S.2d 643, 548 N.E.2d 1294), by a physical examination and by the testimony of two pediatricians and a social worker (see, Matter of Jaclyn P., 86 N.Y.2d 875, 878, 635 N.Y.S.2d 169, 658 N.E.2d 1042, affg. 179 A.D.2d 646, 578 N.Y.S.2d 252, cert. denied sub nom.  Papa v. Nassau County Dept. of Social Servs., 516 U.S. 1093, 116 S.Ct. 816, 133 L.Ed.2d 760;  Matter of Nicole V., supra, at 121, 524 N.Y.S.2d 19, 518 N.E.2d 914;  Matter of Jessica N., 234 A.D.2d 970, 971, 652 N.Y.S.2d 177, appeal dismissed 90 N.Y.2d 1008, 666 N.Y.S.2d 102, 688 N.E.2d 1384;  Matter of David DD., 204 A.D.2d 791, 611 N.Y.S.2d 936, lv. denied 84 N.Y.2d 813, 623 N.Y.S.2d 181, 647 N.E.2d 453).   Additionally, the consistency of Rhianna's statements to three witnesses describing respondent's sexual conduct enhances the reliability of those out-of-court statements (see, Matter of Jessica N., supra, at 972, 652 N.Y.S.2d 177;  Matter of Keith C., 226 A.D.2d 369, 640 N.Y.S.2d 221, lv. denied 88 N.Y.2d 807, 647 N.Y.S.2d 164, 670 N.E.2d 448;  Matter of Jaclyn P., supra, 179 A.D.2d, at 651, 578 N.Y.S.2d 252).   Although respondent presented evidence in rebuttal, such evidence merely presented questions of fact for resolution by the court (see, Matter of Breann B., 185 A.D.2d 711, 586 N.Y.S.2d 71;  Matter of Elrheihem T., 185 A.D.2d 626, 587 N.Y.S.2d 874).

 The evidence also establishes that Nicole is a neglected child because the sexual abuse of Rhianna by respondent demonstrated a fundamental defect in his understanding of the duties and obligations of parenthood and created an atmosphere detrimental to the physical, mental and emotional well-being of Nicole as well (see, Family Ct. Act § 1012[f][i];  Matter of James A., 217 A.D.2d 961, 629 N.Y.S.2d 902;  Matter of Lynelle W., 177 A.D.2d 1008, 1008-1009, 578 N.Y.S.2d 313).

Order unanimously affirmed without costs.

MEMORANDUM: