| Matter of Richard SS. |
| 2008 NY Slip Op 07827 [55 AD3d 1001] |
| October 16, 2008 |
| Appellate Division, Third Department |
| In the Matter of Richard SS., a Child Alleged to be Abused and/orNeglected. Schenectady County Department of Social Services, Respondent; Tammy TT.,Appellant. |
—[*1] Jennifer M. Barnes, Schenectady County Department of Social Services, Schenectady, forrespondent. William L. Koslosky, Law Guardian, Utica.
Spain, J. Appeal from an order of the Family Court of Schenectady County (Powers, J.), enteredFebruary 23, 2007, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 10, to adjudicate the subject child to be abused and neglected.
Petitioner commenced this severe abuse and neglect proceeding against respondent in July 2004alleging that she had regularly engaged in sexual acts with a 16-year-old foster child in her care over theperiod of September 3, 2003 through June 2004. At the fact-finding hearing, Family Court grantedrespondent's motion to dismiss the petition—after petitioner's presentation ofproof—finding the child's out-of-court statements had not been adequately corroborated. Onappeal, we reinstated the petition against respondent,[FN1] finding ample corroboration of the child's [*2]statements and thatpetitioner had put forth prima facie evidence to support the charges (29 AD3d 1118 [2006]). Uponremittal, respondent presented her proof disputing the allegations and the child's credibility. FamilyCourt concluded that respondent had failed to rebut petitioner's prima facie proof and determined thatshe had abused and neglected the child.
Respondent appeals, attempting at length to reargue our previous decision wherein we held that thechild's consistent out-of-court statements were sufficiently corroborated during petitioner's presentationof proof, and petitioner had met its prima facie burden of establishing abuse or neglect by apreponderance of the evidence (id. at 1120-1123). That determination by this Court is the lawof the case (see People v Evans, 94 NY2d 499, 502-503 [2000]). To the extent thatrespondent is urging us to exercise our discretion (see id. at 503) to reconsider the issue basedupon an administrative determination—subsequent to our decision—that the June 2004hotline report to which we made reference was unfounded (see Family Ct Act § 651-a),we are unpersuaded. The indicated report of child abuse cited in our prior decision played only a deminimis, secondary role in our conclusion that the child's statements had been adequately corroborated(29 AD3d at 1122-1123); the subsequent administrative reversal, without a hearing, does notmeaningfully undermine our prior decision or warrant its discretionary reconsideration.
There is no need here to repeat all of the other evidence and testimony corroborating the child'sout-of-court statements, which we detailed at length in that decision. Suffice it to say that the child madeessentially consistent, detailed and credible signed, sworn statements to a State Police investigator (June15, 2004) and a City of Schenectady police detective (July 2, 2004) describing that respondentregularly engaged in sexual intercourse and oral sex with him during the operative period in her vehicle,at her home and at the group home where he was placed after removal from respondent's home. Thestatements were corroborated, well beyond the required "relatively low degree of corroborativeevidence" (Matter of Joshua QQ., 290 AD2d 842, 843 [2002]), by statements he made tocaseworkers, a validation expert,[FN2]and the daughter of his subsequent foster mother (the hotline caller), as well as phone and schoolrecords (29 AD3d at 1119-1123). We did not, as petitioner now alleges, conclude that the child'sstatements were adequately corroborated merely because they were "detailed enough and repeatedoften enough." Rather, we recognized that "mere repetition of the accusations is insufficient [although]some corroboration can be provided through the consistency of a child's statements" (29 AD3d at1121 [citations omitted]).
In an attempt to rebut petitioner's proof, respondent testified, denying any sexual contact with thechild, and she presented the testimony of her husband, mother and stepson. These witnesses essentiallyclaimed that they never observed or overheard any inappropriate conduct and that the childinaccurately described respondent's tattoo on her back (which is visible while [*3]clothed) and her pubic area as shaven. They also testified that respondenthad various physical limitations rendering impossible some of the alleged sexual activity. The attorneyfor the child then called the child's caseworker, who testified, tellingly, that the child revealed thatrespondent had initiated sex with him shortly after his arrival in her home, and they had sex on a regularand consistent basis in various locations. After he was removed from the home, the caseworker and thechild met with respondent and her husband (usually separately because they did not come together) formeetings focused on reunification. During these meetings the husband—out of respondent'spresence—expressed concern about respondent's "unhealthy" relationship with the child; hedescribed it as closer than respondent's relationship to her own children and husband, resulting in a"house divided" with respondent and the child on one side, and the rest of the family on the other.
Family Court concluded that respondent's physical limitations did not render it impossible for her tocommit the sex acts alleged and discredited her denials. According deference to Family Court'scredibility determinations, the court's factual determinations are soundly supported by a preponderanceof evidence in the record, and the finding of abuse and neglect will not be disturbed (see Matter ofJoshua QQ., 290 AD2d at 843; see also Family Ct Act § 1046 [b]).
Lahtinen, Kane, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: This Court affirmed the dismissal ofa separate petition against respondent's husband, based upon insufficient evidence.
Footnote 2: While we noted that the validatorhad qualified her opinion regarding the child's credibility upon cross-examination when she learnedcertain aspects of the child's history for the first time, we found that her testimony provided furthercorroborative support for the child's out-of-court statements, given the consistency in the child'sstatement to her and to others (29 AD3d at 1123). We also concluded, as did Family Court, thatpetitioner had presented sufficient overall evidence even without the validator's testimony.