IN RE: RUSSELL B. and Others

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

IN RE: RUSSELL B. and Others, Alleged to be Abused and Neglected Children. Broome County Department of Social Services, Respondent, Carol C., Respondent, Tobin S., Appellant.

Decided: November 26, 2003

Before:  CARDONA, P.J., CREW III, CARPINELLO, ROSE and LAHTINEN, JJ. Sandra M. Colatosti, Albany, for appellant. Thomas P. Coulson, Broome County Department of Social Services, Binghamton, for Broome County Department of Social Services, respondent. Stephen A. Sutter, Law Guardian, Binghamton. Lorraine A. Seager, Law Guardian, McLean.

Appeal from an order of the Family Court of Broome County (Ray, J.), entered October 22, 2002, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondent Carol C.'s children to be abused and neglected.

Petitioner commenced this abuse and neglect proceeding pursuant to Family Ct Act article 10 alleging, inter alia, that the three children of respondent Carol C. (hereinafter the mother), Russell B. (born in 1988), Brittany B. (born in 1992) and Kayla B. (born in 1996),1 were engaging in inappropriate sexual conduct with one another and that the mother and her paramour, respondent Tobin S. (hereinafter respondent) were aware of such conduct and failed to prevent it.   The petition further alleged that the mother and respondent neglected the children by failing to, inter alia, address Russell's medical needs and keep the home free of animal feces and noxious odors, and that respondent watched pornographic movies with Russell.   Following a hearing, at which respondent did not testify, Family Court determined that the foregoing allegations had been proven by a preponderance of the evidence and, accordingly, adjudicated Russell, Brittany and Kayla abused and neglected children.   This appeal by respondent ensued.

As to the abuse adjudication, respondent, as so limited by his brief, contends only that “the corroborating statements of the children fail to satisfy a ‘threshold of reliability’ as to whether respondent actually had observed Russell sexually abusing Brittany and Kayla” (citing Matter of Stephen GG. [Stephen HH.], 279 A.D.2d 651, 652, 719 N.Y.S.2d 167 [2001] ).   We cannot agree.   Whatever inconsistencies may have existed regarding which sister Russell was “playing married” with at a particular point in time or the precise number of times such incidents occurred does not render the statements regarding respondent's observations and knowledge of these events unreliable.   Respondent's remaining contentions, including his assertion that the record as a whole fails to establish that the children were subjected to unsanitary living conditions, have been examined and found to be lacking in merit.

ORDERED that the order is affirmed, without costs.


1.   We note in passing that this is not the first time these children have been the subjects of such a proceeding (see Matter of Russell B. [David B.], 257 A.D.2d 707, 683 N.Y.S.2d 625 [1999] ).



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