James C., Respondent–Appellant. v. <<

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

Matter of COLBERDEE C. Monroe County Department of Social Services, Petitioner–Respondent; James C., Respondent–Appellant.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., PINE, WISNER, HURLBUTT, AND GORSKI, JJ. Frederick P. Lester, Pittsford, for Respondent–Appellant. Charles S. Turner, County Attorney, Rochester (Paul N. Humphrey of Counsel), for Petitioner–Respondent. Ardeth L. Houde, Law Guardian, Rochester, for Colberdee C.

 Respondent appeals from an order of fact-finding and disposition determining that he sexually abused his daughter.   Contrary to respondent's contention, Family Court's findings of sexual abuse are supported by a preponderance of the evidence (see Family Ct. Act § 1046 [b][i];  see also Matter of Dutchess County Dept. of Social Servs. v. Margaret F., 186 A.D.2d 255, 256, 588 N.Y.S.2d 332).   Respondent correctly contends that where, as here, the evidence includes out-of-court statements of a child, such statements must be adequately corroborated to constitute admissible proof of abuse (see Matter of Tanya T., 252 A.D.2d 677, 678, 675 N.Y.S.2d 237, lv. denied 92 N.Y.2d 812, 680 N.Y.S.2d 458, 703 N.E.2d 270).   However, the testimony of a physician detailing the physical indicia of abuse is sufficient to corroborate such unsworn out-of-court statements (see Matter of Commissioner of Social Servs. of City of N.Y. v. Evelyn R., 217 A.D.2d 697, 630 N.Y.S.2d 338;  see also Matter of Tyler K., 261 A.D.2d 834, 689 N.Y.S.2d 571;  Matter of Kimberly K., 123 A.D.2d 865, 507 N.Y.S.2d 654).

 In this case, the out-of-court statements of the four-year-old victim that she and her daddy “had sex” and her frank description of the activity were corroborated by the testimony of a physician that the victim had injuries that were indicative of sexual abuse.   The court has considerable discretion in determining whether a child's out-of-court statements describing incidents of abuse have been reliably corroborated and whether the record as a whole supports a finding of abuse (see Matter of Commissioner of Social Servs. v. Lorenzo M., 239 A.D.2d 498, 657 N.Y.S.2d 760).   We conclude that the physician's testimony sufficiently corroborates the child's out-of-court statements and that petitioner met its burden of proving that respondent sexually abused his daughter by a preponderance of the evidence.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: