| Matter of Kimberly Z. (Jason Z.) |
| 2011 NY Slip Op 07538 [88 AD3d 1181] |
| October 27, 2011 |
| Appellate Division, Third Department |
In the Matter of Kimberly Z. andAnother, Children Alleged to be Abused and/or Neglected. Delaware County Department ofSocial Services, Respondent; Jason Z., Appellant. (Proceeding No. 1.) In the Matter of Dylan Z.and Another, Children Alleged to be Abused and/or Neglected Children. Delaware CountyDepartment of Social Services, Respondent; Lisa Z., Appellant. (Proceeding No. 2.)—[*1] Rosemarie Richards, Gilbertsville, for Lisa Z., appellant. Porter L. Kirkwood, Delaware County Department of Social Services, Delhi, for respondent. Larisa Obolensky, Delhi, attorney for the child. [*2]Teresa C. Mulliken, Harpersfield, attorney for thechild.
Egan Jr., J. Appeals from an order of the Family Court of Delaware County (Becker, J.),entered May 25, 2010, which granted petitioner's applications, in two proceedings pursuant toFamily Ct Act article 10, to adjudicate respondents' children to be abused and/or neglected.
Respondent Jason Z. (hereinafter the father) and respondent Lisa Z. (hereinafter the mother)are the biological parents of two children, Kimberly Z. (born in 1994) and Dylan Z. (born in1996). In August 2009, after several hours of drinking, the father returned home, enteredKimberly's bedroom and allegedly molested her, prompting the child to escape through herbedroom window and flee to a neighbor's home. During the course of this incident, the fatheralso allegedly grabbed Kimberly's arm—leaving a large bruise—and threatened tohit her if she disclosed the incident to anyone. The authorities were notified and criminal chargesagainst the father ensued.
Petitioner thereafter commenced the first of these proceedings against the father alleging that,in light of his excessive drinking, abusive demeanor and inappropriate sexual contact with hisdaughter, the father abused and/or neglected Kimberly and derivatively neglected Dylan.Petitioner also commenced a separate proceeding against the mother, contending that sheneglected both children by failing to protect them from their father. The petition against themother subsequently was amended to include, among other things, an allegation that she coercedKimberly to recant the allegations of abuse and her corresponding statement to law enforcementofficials.[FN1]
Following a combined fact-finding and preliminary hearing (see Family Ct Act§ 1027), Family Court granted the respective petitions. As to disposition, Family Courtcontinued Kimberly's placement with petitioner and released Dylan to respondents' custodysubject to various terms and conditions. Family Court also issued orders of protection directing,among other things, that the father refrain from any contact with Kimberly. The mother and thefather now each appeal.
We affirm. Turning first to the father's appeal, it is well settled that a child's out-of-courtstatement of abuse or neglect may be admitted in a Family Ct Act article 10 proceeding providedit is corroborated "by any other evidence tending to support [its] reliability" (Matter of Brooke KK. [Paul KK.], 69AD3d 1059, 1060 [2010] [internal quotation marks and citations [*3]omitted]; see Matter of Telsa Z. [Denise Z.], 81 AD3d 1130, 1133-1134[2011]; Matter of Joshua UU. [JessicaXX.—Eugene LL.], 81 AD3d 1096, 1098 [2011]). "A relatively low degree ofcorroborative evidence is sufficient to meet this threshold, and the reliability of the corroboration,as well as issues of credibility, are matters entrusted to the sound discretion of Family Court andwill not be disturbed unless clearly unsupported by the record" (Matter of Justin CC. [Tina CC.], 77AD3d 1056, 1057 [2010] [citations omitted], lv denied 16 NY3d 702 [2011]; see Matter of Miranda HH. [ThomasHH.], 80 AD3d 896, 898-899 [2011]; Matter of Nathaniel II., 18 AD3d 1038, 1040 [2005], lvdenied 5 NY3d 707 [2005]).
Viewing the record in the light most favorable to petitioner (see Matter of Destiny UU. [Leon UU.],72 AD3d 1407, 1408 [2010], lv denied 15 NY3d 702 [2010]), we are satisfied thatKimberly's out-of-court statement regarding the sexual abuse suffered at the hands of her fatherwas sufficiently corroborated by her subsequent written statement to the local police (seeMatter of Justin CC. [Tina CC.], 77 AD3d at 1058]), observations of the bruise on her arm(see Matter of Dylan TT. [KennethUU.], 75 AD3d 783, 783-784 [2010]), her conduct in fleeing her home in the middle ofthe night to seek help from a neighbor, her uncharacteristic demeanor following the incident andDylan's subsequent statement to petitioner's caseworker,[FN2]as well as the father's written statement to law enforcement officials.[FN3]Accordingly, we discern no basis upon which to disturb Family Court's findings as to theallegations of abuse. Our conclusion in this regard is in no way diminished by Kimberly'ssubsequent recantation—particularly in view of the ample evidence demonstrating that hermother coerced her to do so (see Matterof Caitlyn U., 46 AD3d 1144, 1146-1147 [2007]).
To the extent that Family Court also concluded that the father's frequent intoxication andaggressive behavior constituted neglect of Kimberly, the record more than supports such afinding. Kimberly, Dylan and their mother all informed petitioner's caseworker of the father'shistory of drinking to excess on his days off from work—when he routinely wouldconsume [*4]roughly 18 beers at a sitting—after which,according to the children, he would become sufficiently loud and aggressive to cause them to befearful of him. We reach a similar conclusion regarding Family Court's finding that the fatherderivatively neglected Dylan, as the father's sexual abuse of Kimberly, coupled with theuncontested proof of his substance abuse, "demonstrates such an impaired level of parentaljudgment as to create a substantial risk of harm for any child in [his] care" (Matter of JustinCC. [Tina CC.], 77 AD3d at 1058 [internal quotation marks and citations omitted]; accord Matter of Rebecca FF. [DavidFF.], 81 AD3d 1119, 1120 [2011]; see Matter of Angel L.H. [Melissa H.], 85 AD3d 1637, 1637-1638[2011], lv denied 17 NY3d 711 [2011]).
The remaining arguments raised by the father are either unpreserved or unpersuasive. Thefather's contention that Family Ct Act § 1046 (a) (i) is unconstitutional lacks merit (seeMatter of Nicole V., 71 NY2d 112, 117-118 [1987]; Matter of William D., 198AD2d 40, 40 [1993], lv denied 83 NY2d 756 [1994]), and his assertion that Family Courtproceeded to the dispositional hearing prior to rendering a fact-finding order pursuant to FamilyCt Act § 1051 (a) is belied by the record. On a related note, although the court's originalfact-finding order neglected to specify the particular sex offense committed by the father(see Family Ct Act § 1051 [e]), this omission was remedied in the court's amendedorder and, in any event, the father has failed to allege any prejudice in this regard (see Matterof Ashley AA., 212 AD2d 937, 939 [1995]).
As for the father's assertion that the Delaware County District Attorney, who was a party tothis proceeding pursuant to Family Ct Act § 254 (b), should have been disqualifiedbecause he was related to the children's maternal grandmother, we need note only that when thiswas disclosed at the hearing, the father raised no objection in this regard, nor did he allege anyconflict of interest (see Matter of Brittany H., 184 AD2d 903, 903 [1992]; cf. People v Botting, 8 AD3d1064, 1065 [2004], lv denied 3 NY3d 671 [2004]; Matter of Lisa S. v WilliamS., 187 AD2d 435, 435-436 [1992]). The father's claim that Family Court demonstrated bias,which involves facts outside the record, similarly is unpreserved for our review in light of thefather's failure to object or otherwise move for Family Court's recusal (cf. People v Casey, 61 AD3d1011, 1014 [2009], lv denied 12 NY3d 913 [2009]; People v Davenport, 38 AD3d1064, 1066 [2007]; People vBigwarfe, 35 AD3d 904, 905 [2006], lv denied 8 NY3d 878 [2007]). As forFamily Court's decision to consolidate the fact-finding hearing with the hearing held pursuant toFamily Ct Act § 1027, the father did not oppose petitioner's request to combine thehearings or otherwise raise any objection thereto, thereby failing to preserve this issue for ourreview (cf. Matter of Telsa Z. [DeniseZ.], 84 AD3d 1599, 1660 [2011], lv denied 17 NY3d 708 [2011]).
Finally, we reject the father's claim that he was denied due process and/or the effectiveassistance of counsel due to Family Court's decision to admit into evidence the State CentralRegistry report, together with the caseworker notes attached thereto. Contrary to the father'sassertion, the record reflects that counsel was both provided with a copy of petitioner's recordsprior to the hearing and afforded an additional opportunity to review the records during a break inthe hearing, in response to which counsel made various objections and succeeded in havingportions thereof redacted. Under these circumstances, we find the father's due process argumentto be unpersuasive (cf. Matter of Allen v Wells, 256 AD2d 651, 652-653 [1998]). Thefather's remaining contentions, including his assertion that Family Court abused its discretion inordering that he engage in various services, have been examined and found to be lacking in merit.
Turning to the mother's appeal, "[t]he case law makes clear that a child may be [*5]adjudicated to be neglected within the meaning of Family Ct Act§ 1012 (f) (i) when a parent knew or should have known of circumstances which requiredaction in order to avoid actual or potential impairment of the child and failed to act accordingly"(Matter of Mary MM., 38 AD3d956, 957 [2007] [internal quotation marks and citation omitted]; accord Matter of Jessica P., 46 AD3d1142, 1143 [2007]; see Matter ofShiree G. [Robert E.], 74 AD3d 1416, 1417 [2010]). Upon our review of the record andtaking into consideration that Family Court was entitled to draw the strongest possible inferenceagainst the mother based upon her failure to testify (see Matter of Caitlyn U., 46 AD3d at1147; Matter of Nathaniel II., 18 AD3d at 1039), we are satisfied that the finding ofneglect was supported by a preponderance of the evidence (see Matter of Nathaniel II., 18AD3d at 1038). Simply put, the mother's conduct following Kimberly's disclosure of theunderlying sexual abuse—including her actions in persuading her daughter torecant—more than support Family Court's finding that she failed to be a protective ally forKimberly. Similarly, despite being aware of the father's excessive alcohol consumption, themother continued to insist that he did not have a drinking problem and failed to appreciate theharmful effect that his aggressive behavior was having upon Kimberly and Dylan. Accordingly,the finding of neglect as to the mother will not be disturbed. The mother's remaining arguments,to the extent not specifically addressed, have been examined and found to be equallyunpersuasive.
Mercure, J.P., Peters, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: In conjunction therewith, themother was charged with endangering the welfare of a child and tampering with a witness in thefourth degree. As a result of this incident, Kimberly was removed from the mother's home and,upon the mother's consent, placed in respite care with petitioner pending the fact-finding hearing.The criminal charges against both parents remained pending as of that hearing.
Footnote 2: According to the caseworker,Dylan indicated that he heard his father come home at approximately 11:00 p.m., saw him enterKimberly's room, heard Kimberly crying and later observed his father leaving her bedroom.
Footnote 3: When asked what had transpiredon the night in question, the father stated, "I came home. Walked in the house, went down thehall, turned the hallway light on. I went in [Dylan's] room, gave my son a kiss on the forehead.He said he loved me. I said I loved him, and I left his room. After I left his room I went in[Kimberly's] room to do the same thing. When I was in there I guess I fondled her. I don'tremember doing it, but I had a lot to drink, so I guess I did." The father's professed lack ofmemory as to what occurred once he entered Kimberly's room is dubious given his detailedrecollection of the events leading up to that point and, in view of his failure to testify at thehearing, Family Court was entitled "to draw the strongest inference against him which theopposing evidence would allow" (Matter of Nathaniel II., 18 AD3d at 1039 [internalquotation marks and citations omitted]; see Matter of Caitlyn U., 46 AD3d 1144, 1147 [2007]).