SERVICES PETITIONER RESPONDENT JAMIE RESPONDENT APPELLANT v. <<

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

SERVICES, PETITIONER–RESPONDENT;  JAMIE L.R., RESPONDENT–APPELLANT.

CAF 10–00914

Decided: April 29, 2011

PRESENT:  SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ. D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT. STEPHEN J. RILEY, OLEAN, FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

BERT R. DOHL, ATTORNEY FOR THE CHILD, SALAMANCA, FOR NICHOLAS J.R.

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

Memorandum:  Respondent mother appeals from an order of fact-finding and disposition determining that she sexually abused her son.   Contrary to the mother's contention, Family Court's findings of sexual abuse are supported by the requisite preponderance of the evidence (see Family Ct Act § 1046[b] [i];  Matter of Colberdee C., 2 AD3d 1316).  “A child's out-of-court statements may form the basis for a finding of [abuse] as long as they are sufficiently corroborated by [any] other evidence tending to support their reliability” (Matter of Nicholas L., 50 AD3d 1141, 1142;  see § 1046[a] [vi];  Matter of Nicole V., 71 N.Y.2d 112, 117–118;  Matter of Alston C., 78 AD3d 1660).   Courts have “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” (Colberdee C., 2 AD3d at 1316;  see Nicholas L., 50 AD3d at 1142), and “[t]he Legislature has expressed a clear ‘intent that a relatively low degree of corroborative evidence is sufficient in abuse proceedings' “ (Matter of Jessica N., 234 A.D.2d 970, 971, appeal dismissed 90 N.Y.2d 1008;  see Matter of Richard SS., 29 AD3d 1118, 1121).   Here, the out-of-court statements of the child were sufficiently corroborated by the testimony of an evaluating psychologist who opined that the child's statements made both to the psychologist and to a caseworker for child protective services during a videotaped interview were credible (see § 1046[a][vi];  Matter of Annastasia C., 78 AD3d 1579;  see also Alston C., 78 AD3d at 1661).   Furthermore, “[a]lthough ‘repetition of an accusation by a child does not corroborate the child's prior account of [abuse]’ ․, ‘the consistency of the child['s] out-of-court statements describing [the mother's] sexual conduct enhances the reliability of those out-of-court statements' “ (Matter of Yorimar K.-M., 309 A.D.2d 1148, 1149;  see Richard SS., 29 AD3d at 1121–1122;  Matter of Rhianna R., 256 A.D.2d 1184).

We reject the further contention of the mother that the court erred in precluding her from presenting certain evidence at the fact-finding hearing concerning the father's alleged corporal punishment of the child.   Pursuant to Family Court Act § 1046(b)(iii), “only competent, material and relevant evidence [may] be admitted” at a fact-finding hearing on an article 10 petition.  “The terms material and relevant are generally used interchangeably and evidence is relevant when it logically renders the existence of a material fact more likely or probable than it would be without the evidence” (Matter of Rockland County Dept. of Social Servs. v Brian McM., 193 A.D.2d 121, 124 [internal quotation marks omitted] ).   Although “[a]ny evidence tending to support the [mother's] position that the allegations of abuse were fabricated [is] relevant” (Matter of Christopher L., 19 AD3d 597, 598;  see Rockland County Dept. of Social Servs., 193 A.D.2d at 124), here the evidence concerning the father's alleged corporal punishment of the child was not relevant with respect to the issue whether the mother sexually abused the child (see Matter of Lauren R., 18 AD3d 761).

Finally, the mother contends that the court improperly delegated to a psychologist the authority to determine whether contact between the mother and the child should occur during therapy sessions.   That provision appears in an order of protection that was annexed to and made a part of the order on appeal.  “While we agree with the mother with respect to the merits of her contention ․, we conclude that, because the order [of protection] has expired,” the mother's contention is moot (Matter of Leah S., 61 AD3d 1402).

Patricia L. Morgan

Clerk of the Court