St. Lawrence County Department of Social Services, Respondent.  (Appeal No. 1.) v. <<

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

Matter of STEPHANIE B., a Child Alleged to be Abused. Keith B., Appellant; St. Lawrence County Department of Social Services, Respondent.  (Appeal No. 1.)

Decided: December 31, 1997

Before DENMAN, P.J., and LAWTON, HAYES, BALIO and BOEHM, JJ. Karl E. Manne, Herkimer, for Respondent-Appellant. Daniel C. Shaughnessy, Jr., Herkimer, for Petitioner-Respondent. William Koslosky, Utica, for Law Guardian.

Respondent appeals from two orders of Family Court, one adjudicating Stephanie B. an abused child and the other adjudicating Zachary B. a neglected child.   He contends that the determinations of the court are not supported by sufficient evidence and that the court erred in refusing to admit polygraph evidence.

 It is well settled that a finding that a child has been abused or neglected pursuant to article 10 of the Family Court Act must be supported by a preponderance of the evidence (see, Family Ct.Act § 1046[b][i];  Matter of Tammie Z., 66 N.Y.2d 1, 494 N.Y.S.2d 686, 484 N.E.2d 1038).   The determination of Family Court is entitled to great weight and should not be disturbed “unless clearly unsupported by the record” (Matter of Commissioner of Social Servs. of City of N.Y. [Shevonne S.] [Jannie S.-Rafael R.], 188 A.D.2d 528, 529, 591 N.Y.S.2d 195).   This is particularly so when there is no physical evidence of the abuse and when the only evidence is testimonial and rests upon the court's determination of the credibility of the witnesses (see, Matter of Orange County Dept. of Social Servs. [Frank T.], 215 A.D.2d 562, 563, 627 N.Y.S.2d 68).

 Where, as here, the allegedly abused child has provided out-of-court statements relative to the abuse, such statements are admissible under the statutory exception to the hearsay rule in Family Court Act § 1046(a)(vi), so long as there is corroboration.   The “in camera unsworn but cross-examined testimony” of Stephanie constituted such corroboration (Matter of Christina F. [Gary F.], 74 N.Y.2d 532, 535, 549 N.Y.S.2d 643, 548 N.E.2d 1294;  see, Matter of Brandy J., 236 A.D.2d 894, 654 N.Y.S.2d 65).

 We conclude that the determinations that Stephanie was sexually abused and that Zachary was neglected by respondent are amply supported by the evidence (see, Matter of Brandy J., supra).

 We also conclude that the court properly refused to admit polygraph evidence.   Such evidence is not sufficiently reliable to be admissible (see, Matter of Erick R., 166 A.D.2d 161, 162, 564 N.Y.S.2d 76, lv. denied 77 N.Y.2d 802, 567 N.Y.S.2d 643, 569 N.E.2d 446;  Matter of Aryeh-Levi K., 134 A.D.2d 428, 429, 521 N.Y.S.2d 50).

Order unanimously affirmed without costs.


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