Katherine J.F., Respondent–Appellant. v. <<

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

Matter of ANITA J.F., Ariel C.F., Pearl F. and Ernest F. Seneca County Department of Social Services, Petitioner–Respondent; Katherine J.F., Respondent–Appellant.

Decided: December 30, 1999

PRESENT:  PINE, J.P., LAWTON, WISNER, HURLBUTT and BALIO, JJ. Peter O. Einset, Geneva, for respondent-appellant. Frank R. Fisher, Waterloo, for petitioner-respondent.

 Respondent appeals from an order of fact-finding and disposition of Family Court determining, following a hearing, that Ariel and her siblings are neglected children and that Ariel was sexually abused by respondent's boyfriend.   Upon our review of the record, we conclude that the findings of neglect and abuse are established by a preponderance of the evidence (see, Family Ct. Act § 1046[b][i];  Matter of Philip M., 82 N.Y.2d 238, 243–244, 604 N.Y.S.2d 40, 624 N.E.2d 168).   The out-of-court statements of Ariel were sufficiently corroborated by the eyewitness testimony of her sister Anita and the validation testimony of petitioner's expert witness (see, Family Ct. Act § 1046[a][vi];  Matter of Nicole V., 71 N.Y.2d 112, 121, 524 N.Y.S.2d 19, 518 N.E.2d 914).   The out-of-court statement of Anita that a second incident took place on or about February 4, 1998 was sufficiently corroborated by her hearing testimony (see, Matter of Christina F., 74 N.Y.2d 532, 536–537, 549 N.Y.S.2d 643, 548 N.E.2d 1294).   Although the court found that the second incident took place “on or about mid-January 1998”, we note that it took place on or about February 4, 1998 (see, Matter of Elizabeth G., 255 A.D.2d 1010, 1011, 680 N.Y.S.2d 32, lv. dismissed 93 N.Y.2d 848, 688 N.Y.S.2d 494, 710 N.E.2d 1093, lv. denied 93 N.Y.2d 814, 697 N.Y.S.2d 561, 719 N.E.2d 922;  Matter of Anita U., 185 A.D.2d 378, 379, 585 N.Y.S.2d 826).   Respondent contends that Ariel and Anita were not credible witnesses.  “Considering Family Court's unique opportunity to view these witnesses and assess their credibility, we find no abuse of discretion in its determination” (Matter of Melissa I., 256 A.D.2d 671, 673, 681 N.Y.S.2d 372).   The failure of respondent's boyfriend to deny the allegations when he testified entitled the court to draw the strongest inferences against him as were supported by the other evidence in the case (see, Matter of Jeffrey D., 233 A.D.2d 668, 670, 650 N.Y.S.2d 340;  1A N.Y. PJI 3d 99).

 The finding of neglect with respect to respondent was properly based upon evidence of her conduct after learning of the abuse (see, Matter of Elizabeth G., supra, at 1012, 680 N.Y.S.2d 32).   We note in addition that petitioner presented proof that, in an unrelated prior proceeding, respondent violated an order of protection by allowing contact between her boyfriend and the children.   We reject respondent's contention that the court violated Family Court Act § 1041(a).   Respondent's remaining contentions are not preserved for our review.

Order unanimously affirmed without costs.


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