| Matter of Rawich v Amanda K. |
| 2011 NY Slip Op 08689 [90 AD3d 1085] |
| December 1, 2011 |
| Appellate Division, Third Department |
| In the Matter of Isabelle Rawich, as Attorney for the Children,Respondent, v Amanda K. et al., Respondents. Michael L. et al.,Appellants. |
—[*1] Isabelle Rawich, South Fallsburg, respondent pro se. Mitch Kessler, Cohoes, for Amanda K., respondent. Cliff Gordon, Monticello, for Michael K., respondent.
Mercure, J.P. Appeal from an order of the Family Court of Sullivan County (Ledina, J.),entered July 2, 2010, which dismissed petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, to modify a prior order of custody.
Respondent Amanda K. (hereinafter the mother) and respondent Michael K. (hereinafter thefather) are the parents of two daughters (born in 2001 and 2003) and a son (born in 2004). FamilyCourt awarded the parents custody of the children following an unsuccessful custody proceedingcommenced by Barbara L. and Michael L., their maternal grandmother and step-grandfather(hereinafter the grandparents). Petitioner, the attorney for the children, commenced thismodification proceeding shortly thereafter and sought an award of custody to the grandparents.[*2]
Family Court temporarily placed the children in thegrandparents' custody. While there, the oldest child was observed pulling on her genitals whilebathing and stated that she had been instructed to do so by the mother and to "tell her how. . . it feels." Petitioner accordingly requested, and Family Court ordered withoutobjection, that the daughters be evaluated by psychotherapist Edythe Raiten for evidence ofrecent sexual abuse. After Raiten opined that the oldest child had been sexually abused by themother, the parents moved for an evaluation by another expert, which Family Court denied.Family Court further refused, over petitioner's objection, to consider Raiten's testimony at trial onthe ground that it would be "unfair" to the parents to do so.
At trial, all other testimony from the temporary custody hearing was stipulated into evidence.Family Court thereafter determined that petitioner had not shown the existence of extraordinarycircumstances to warrant depriving the parents of custody and dismissed the petition. Inparticular, Family Court held that the oldest child's statements regarding the abuse wereuncorroborated and refused to consider them. The court further found that her observed actions,absent those statements, were entitled to "little weight." The grandparents appeal, and we nowreverse.[FN*]
The evidentiary rules set out in Family Ct Act article 10, including the requirement that achild's out-of-court statements claiming abuse be sufficiently corroborated, are applicable in thisproceeding given the oldest child's allegations of sexual abuse (see Family Ct Act§ 1046 [a] [vi]; Matter of MichaelCC. v Amber CC., 57 AD3d 1037, 1038 [2008]). A relatively low degree ofcorroboration is required; sufficient corroboration exists where, for instance, an expert examinesa child and opines that he or she behaved in a manner "consistent with having been abused" ormade statements "parallel[ling] those normally made by abuse victims" (Matter of Nikita W. [Michael W.], 77AD3d 1209, 1210 [2010]; see Matter of Evan Y., 307 AD2d 399, 399-400 [2003];Matter of Vincent I., 205 AD2d 878, 879 [1994]). In our view, the grandparents correctlyassert that Raiten's expert opinion that the oldest child had been abused by themother—which was based upon the child's observed demeanor, the consistency of herstatements and her reenactment of the abuse using toys—would have provided thatcorroboration (see Matter of ShirleyC.-M., 59 AD3d 360, 360-361 [2009]; Matter of Ashley M., 235 AD2d 858, 858[1997]).
Family Court properly directed Raiten to evaluate the children for signs of sexual abuse(see Family Ct Act § 251 [a]; Matter of Kubista v Kubista, 11 AD3d 743, 745 [2004]); indeed,the initial request for the evaluation was unopposed and the "serious issues of fitness" raised bythe allegations of abuse necessitated it (Matter of Vernon Mc. v Brenda N., 196 AD2d823, 825 [1993]; see Family Ct Act § 1027 [g]; Matter of Shanasia H., 19 AD3d 694, 695 [2005]; cf. Matter ofSmith v Kalman, 235 AD2d 848, 849 [1997]). Nevertheless, Family Court refused toconsider either the evaluation or Raiten's testimony in making its determination. This refusal ledto pernicious results here, inasmuch as it prevented Family Court from considering the child'sstatements and assessing the credibility of her claims. Under these circumstances, we agree withthe grandparents that Family Court erred in excluding Raiten's testimony and, therefore, we remitthis matter so that evidence of Raiten's evaluation may be considered (see Ekstra v Ekstra, 49 AD3d 594,595-596 [2008]; Matter of Vernon Mc. v Brenda N., 196 AD2d at 825; cf. Matter of[*3]Lori P. v Susan P., 243 AD2d 817, 819 [1997]). In lightof the foregoing, we need not address the grandparents' remaining claims.
Peters, Spain, Rose and Kavanagh, JJ., concur. Ordered that the order is reversed, on the law,without costs, and matter remitted to the Family Court of Sullivan County for further proceedingsnot inconsistent with this Court's decision.
Footnote *: *Petitioner's separate appealfrom Family Court's order has been withdrawn inasmuch as the grandparents' arguments forreversal have now been adopted.