| Matter of Branden P. (Corey P.) |
| 2011 NY Slip Op 08866 [90 AD3d 1186] |
| December 8, 2011 |
| Appellate Division, Third Department |
| In the Matter of Branden P. and Others, Children Alleged to beAbused and/or Neglected. Clinton County Department of Social Services, Respondent; Corey P.,Appellant. (Proceeding No. 1.) In the Matter of Jadyn P., a Child Alleged to be Abused and/orNeglected. Clinton County Department of Social Services, Respondent; Corey P., Appellant.(Proceeding No. 2.) |
—[*1] Michael J. Hartnett, Clinton County Department of Social Services, Plattsburgh, forrespondent. Kathleen R. Insley, Plattsburgh, attorney for the children.
[*2]Garry, J. Appeals from three orders of the Supreme Court(Lawliss, J.), entered September 14, 2010 and November 23, 2010 in Clinton County, whichgranted petitioner's applications, in two proceedings pursuant to Family Ct Act article 10, toadjudicate respondent's children to be abused and/or neglected.
Petitioner commenced a proceeding pursuant to Family Ct Act article 10 against respondentalleging that he abused and/or neglected his older son (born in 1998) (hereinafter the son) andtwo daughters (born in 1995 and 2001); shortly thereafter, petitioner commenced a secondproceeding making the same allegations as to respondent's younger son (born in 2008). Theproceedings were removed from Family Court to the integrated domestic violence part ofSupreme Court. Following a fact-finding hearing on both petitions, Supreme Court determinedthat: (1) respondent penetrated the son's anus with his penis and touched his genitals; (2)insufficient corroborative evidence existed to find that respondent directly abused the youngerdaughter; (3) the son was an abused and neglected child under Family Ct Act article 10 andrespondent was responsible for the abuse and neglect in that he had committed an offense asdefined in Penal Law § 130.45 (1) and (4) respondent derivatively abused and neglectedthe daughters and the younger son. After a hearing, the court entered separate dispositional ordersin the two proceedings. Respondent appeals.
Contrary to respondent's claim, petitioner met its burden to prove the allegations of abuseand neglect by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i];Matter of Keara MM. [NaomiMM.], 84 AD3d 1442, 1443 [2011]; Matter of Alexander F. [Raddad I.], 82 AD3d 1514, 1515 [2011]).Petitioner offered the testimony of two school employees describing statements made by theyounger daughter to the effect that respondent had hurt her and had sexual contact with her; shefurther told the employees that the son had said that respondent "put his wiener into his butt." Achild protective caseworker and a State Police investigator testified that they conducted severaljoint interviews with the son in which he told them, among other things, that respondent had "puthis pee pee in [the son's] butt" after directing him to take off his clothes and bend over with hisbuttocks in the air. The son demonstrated the physical position that respondent had told him toassume, described and demonstrated a separate incident in which respondent touched the son's"pee pee" with his hand, and told the workers that both of these events took place on the sameday during a visit to respondent's home in October 2009, on or around the son's birthday. Thecaseworker further testified that she had also interviewed the older daughter, who stated that theson and the younger daughter had both told her that respondent had sexual contact with them.The caseworker also described a conversation with respondent in which he allegedly admittedthat he "lied" in a written statement he gave to police.
The son's maternal grandmother testified that, in October 2009, he told her that respondenthad bent him over a couch and "put his penis inside of him." She stated that at this time, the sonwas displaying unusual behavior such as "pick[ing] at his butt," openly masturbating, and havingnightmares from which he awoke screaming and covered with hives. The older daughter testifiedthat on October 10, 2009, the son was dropped off by the paternal grandmother at respondent'shome; she said that after his return, he was quieter than usual, "pick[ed] at his butt. . . like, if you had a wedgie or something . . . but a little bit deeper,"and played more roughly than he normally did. Finally, the son gave sworn testimony, statingthat respondent placed his penis in his "butt" two or three times during a visit with him aroundthe [*3]time of the son's birthday in October 2009. The sonprovided specific details about these events and demonstrated his position at the time by leaningover the arm of his chair with his head toward the floor.
The foregoing constituted ample evidence establishing on a prima facie basis that respondentabused and neglected the son, thus shifting the burden to respondent to rebut the evidence ofculpability (see Matter of Philip M., 82 NY2d 238, 244 [1993]; Matter of Brooke OO. [Lawrence OO.],74 AD3d 1429, 1431 [2010], lv denied 15 NY3d 706 [2010]; Matter of Ashley RR., 30 AD3d699, 700 [2006]). Respondent's mother testified on his behalf, denying that respondent hadaccess to the son at the time of the alleged abuse and stating that she did not believe the son'sclaims that respondent abused him. Respondent's aunt testified that she accompanied the son, theolder daughter, and the paternal grandmother on a shopping trip on October 10, 2009, and hosteda birthday party for the son later that day; she stated that respondent was not present during theseevents. Respondent's girlfriend—who is also the mother of the youngerson—testified that she and respondent were out of town throughout the weekend inquestion. Notably, respondent did not testify on his own behalf, permitting Supreme Court " 'todraw the strongest inference against [him] as the opposing evidence would allow' " (Matter of Michael N. [Jason M.], 79AD3d 1165, 1168 [2010], quoting Matter of Tashia QQ., 28 AD3d 816, 818 [2006]).
The son's out-of-court statements were sufficiently corroborated " 'by other evidenceintroduced during the proceeding that tend[ed] to establish their reliability' " (Matter of Telsa Z. [RickeyZ.—Denise Z.], 71 AD3d 1246, 1249 [2010], quoting Matter of Kole HH., 61 AD3d1049, 1051 [2009], lv dismissed 12 NY3d 898 [2009]; see Family Ct Act§ 1046 [a] [vi]). " '[A] relatively low degree of corroborative evidence is sufficient inabuse proceedings' " (Matter of RichardSS., 29 AD3d 1118, 1121 [2006], quoting Matter of Joshua QQ., 290 AD2d842, 843 [2002]). The son's out-of-court statements were "corroborated in key respects" by hisconsistent accounts and demonstrations of the abuse, his sworn testimony (Matter of Sabrina M., 6 AD3d759, 761 [2004]; see Matter ofMiranda HH. [Thomas HH.], 80 AD3d 896, 898-899 [2011]) and his relatives'testimony describing his changed behavior at the time of the alleged abuse (see Matter of Loren B. v Heather A.,13 AD3d 998, 1000 [2004], lv denied 4 NY3d 710 [2005]; Matter of CeciliaPP., 290 AD2d 836, 837-838 [2002]). As respondent notes, the son's in-court testimony as tothe dates and times when the alleged events occurred was confused and inconsistent, butpetitioner offered explanatory evidence describing the son's mental limitations; at the age of 11,he functioned at a first-grade level and, by his own testimony, could not tell time.[FN*] Determining the reliability of this corroborative evidence, as well as resolving credibility issuespresented by the conflicting testimony, "are matters entrusted to the sound discretion of[Supreme Court]" (Matter of Justin CC.[Tina CC.], 77 AD3d 1056, 1057 [2010], lv denied 16 NY3d 702 [2011]). Thecourt's conclusions as to respondent's abuse of the son are supported by a sound and substantialbasis in the record and will not be disturbed. Further, the findings pertaining to respondent'ssexual abuse of the son " 'demonstrate[d] such an impaired level of [*4]parental judgment as to create a substantial risk of harm for anychild in [his] care' " (id. at 1058, quoting Matter of Ian H., 42 AD3d 701, 704 [2007], lv denied 9NY3d 814 [2007]), and thus support the court's determination that he derivatively abused andneglected the other three children (see Matter of Marino S., 100 NY2d 361, 374-375[2003], cert denied 540 US 1059 [2003]; Matter of Kayden E., 88 AD3d 1205, 1207 [2011]).
Peters, J.P., Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: Supreme Court acknowledgedthat the precise date when the abuse occurred was uncertain, noting that it did not make a findingthat respondent committed criminal sexual acts in the first degree (see Penal Law §130.50 [3]) because it could not determine whether the events occurred before or after the son's11th birthday.