| Matter of Nikita W. (Michael W.) |
| 2010 NY Slip Op 07634 [77 AD3d 1209] |
| October 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Nikita W. and Others, Children Alleged to beNeglected. Columbia County Department of Social Services, Respondent; Michael W.,Appellant. |
—[*1] Benjamin Shaw, Columbia County Department of Social Services, Hudson (James A.Carlucci, Hudson, of counsel), for respondent. Geri Pomerantz, East Greenbush, attorney for the children.
Egan Jr., J. Appeal from an order of the Family Court of Columbia County (Czajka, J.),entered December 29, 2008, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondent's children to be neglected.
Petitioner commenced this proceeding against respondent alleging neglect and derivativeneglect of his two daughters (born in 1998 and 1999). In June 2008, a 10-year-old girl(hereinafter the child) was a sleepover guest in respondent's home. All of the children slept in thesame bedroom, with the child and older daughter sharing a bed. Respondent is alleged to haveentered the bedroom while the children slept, untied the child's halter top, fondled her breasts andattempted to put his hands down her pants. After a fact-finding hearing, which included, amongother testimony, the child's own in-court testimony, as well as the testimony of the child's schoolcounselor, an investigator with petitioner and its validation expert, Rebecca [*2]Arp—all of whom articulated the out-of-court statementsmade by the child regarding the alleged abuse—Family Court granted the petition.Respondent now appeals contending that Family Court erred in admitting Arp's testimony tocorroborate the out-of-court statements made by the child.
Family Ct Act § 1046 (a) (vi) provides that a child's unsworn out-of-court statementsrelating to abuse or neglect may be introduced into evidence and will support such a finding, ifsufficiently corroborated (see Matter of Nicole V., 71 NY2d 112, 117-118 [1987]). "[A]relatively low degree of corroborative evidence is sufficient in abuse proceedings" (Matter of Caitlyn U., 46 AD3d1144, 1146 [2007] [internal quotation marks and citation omitted]), and corroboration maybe satisfied by any evidence tending to support the statement's reliability (see Matter of Lindsey BB. [Ruth BB.],70 AD3d 1205, 1206-1207 [2010]; Matter of Aaliyah B. [Clarence B.], 68 AD3d 1483, 1484 [2009]).However, the mere repetition of the out-of-court statement will not provide the requisitecorroboration (see Matter of Telsa Z.[Rickey Z.—Denise Z.], 71 AD3d 1246, 1249 [2010]). Sufficient corroborativeevidence has been held to include the testimony of an expert, when that testimony does morethan vouch for the credibility of the child (see Matter of Thomas N., 229 AD2d 666, 668[1996]; Matter of Kelly F., 206 AD2d 227, 229 [1994]). For example, statements aresufficiently corroborated when the expert opines that the child's behavior is consistent withhaving been abused or that the child's statements parallel those normally made by abuse victims(see Matter of Rebecca KK., 61AD3d 1035, 1036 [2009]; cf. Matter of Jared XX., 276 AD2d 980, 982 [2000]).
Here, we are unpersuaded that Family Court erred in admitting the testimony of petitioner'svalidation expert. Based on, among other things, the child's spontaneous, coherent, logical,detailed and contextually embedded accounting of the incident, Arp, through her application ofthe Yuille Step Wise Protocol for interviewing alleged victims of sexual abuse, concluded thatthe statements of abuse made by the child during the interview were "consistent with accounts ofknown sexual abuse victims." At the fact-finding hearing, Arp testified, among other things, thatthe child's detailed descriptions of what she was wearing, body positioning, conversations thatwere had, games that were played, how respondent allegedly touched her, together with thechild's use of gestures to describe the incident, were indicative that the child actually experiencedwhat she described. Arp further testified that the child's accounting, wherein she describedfeigning sleep during the incident, is a "typical dynamic" seen in sexual abuse victims who arescared or trying to pretend that the incident is not happening. To the extent that Arp referred tothe child's "credibility," she explained that that term was "loosely used," and that her analysisdoes not involve a credibility determination, but rather a determination as to whether certainelements found in accounts of known sexual abuse victims are also present in the alleged victim'saccount. In these circumstances, and noting that Family Court is "vested with considerablediscretion" in making such a determination (Matter of Aaliyah B. [Clarence B.], 68 AD3dat 1484), we find that there is adequate evidence to support both the decision to admit and creditArp's validation testimony (see Matter of Zachary Y., 287 AD2d 811, 814 [2001];Matter of Katje YY., 233 AD2d 695, 696 [1996]; compare Matter of Kelly F.,206 AD2d at 229).[FN*]Finally, respondent's remaining assertions, including his challenges to Arp's [*3]purported departure from the Yuille protocol, went to the weight tobe afforded her opinion, and we find no basis in the record to disturb Family Court'sdetermination (see Matter of Daniel R. v Noel R., 195 AD2d 704, 707 [1993];compare Matter of Jared XX., 276 AD2d at 982).
Mercure, J.P., Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: We note that, even withoutArp's testimony, the child's sworn testimony at the hearing was sufficient to corroborate herunsworn out-of-court statements describing the abuse (see Matter of Brandi U., 47 AD3d 1103, 1104 [2008]).