| Matter of Caitlyn U. |
| 2007 NY Slip Op 09992 [46 AD3d 1144] |
| December 20, 2007 |
| Appellate Division, Third Department |
| In the Matter of Caitlyn U. and Others, Children Alleged to beAbused and/or Neglected. Albany County Department for Children, Youth and Families,Respondent; Brian V., Appellant. (Proceeding No. 1.) In the Matter of Caitlyn U. and Others,Children Alleged to be Abused and/or Neglected. Albany County Department for Children,Youth and Families, Respondent; Diane V., Appellant. (Proceeding No.2.) |
—[*1] [*2]Paul J. Connolly, Delmar, for Diane V., appellant. Joseph Alund, Albany County Department for Children, Youth and Families, Albany, forrespondent. Tracey A. Brown, Law Guardian, Clifton Park.
Rose, J. Appeal from an order of the Family Court of Albany County (Walsh, J.), enteredDecember 18, 2006, which granted petitioner's applications, in two proceedings pursuant toFamily Ct Act article 10, to adjudicate the subject children to be abused and/or neglected.
Caitlyn U. (hereinafter the child) was born in 1992 and lived with respondents, her motherand stepfather, and her two younger sisters. On October 26, 2005, she first told school officialsthat her stepfather had been sexually abusing her since she was eight or nine years old. The nextday, the child met with the school principal, her counselor, a police investigator and one ofpetitioner's caseworkers. With some prompting, she described the sexual acts that she and herstepfather had engaged in over the past five years. Shortly thereafter, however, the child recanted,explaining that she had falsely accused her stepfather in order to avoid losing a girlfriend.
Petitioner then commenced these proceedings against both respondents alleging abuse andneglect with respect to the child and derivative abuse and neglect of her sisters. At thefact-finding hearing, neither respondent testified. Testimony by the principal, the counselor andthe caseworker related the child's statements to them that her stepfather had given her prolongedkisses with an open mouth, fondled all of the intimate parts of her body, and required her tomasturbate him and perform fellatio upon him. In her own testimony, the child claimed that shecould not recall any of the details of her accusations, but nonetheless asserted that they had beenfalse and made in order to get out of her home and run away with a friend. Family Court deemedthe child's out-of-court accusations of sexual contact to be credible and sufficiently corroborated,rejected her recantation and explanation of her accusations as not credible, and attributed herrecantation to pressure applied at home. Accordingly, the court found that the stepfather hadsexually abused the child on several occasions. Based on this finding and evidence that themother had been aware of at least some inappropriate contact between the stepfather and thechild, the court concluded that respondents had abused and neglected the child, and derivativelyabused and neglected her sisters.
On appeal, respondents contend that the child's out-of-court statements were insufficientlycorroborated to prove sexual abuse by a preponderance of the evidence. We cannot [*3]agree. " 'Family Court Judges presented with the issue haveconsiderable discretion to decide whether the child's out-of-court statements describing incidentsof abuse or neglect have, in fact, been reliably corroborated and whether the record as a wholesupports a finding of abuse' " (Matter of Christina F., 74 NY2d 532, 536 [1989] [citationomitted]; see Family Ct Act § 1046 [a] [vi]). An out-of-court statement "may becorroborated by any evidence tending to support its reliability, and a relatively low degree ofcorroborative evidence is sufficient in abuse proceedings" (Matter of Joshua QQ., 290AD2d 842, 843 [2002] [citation omitted]; accord Matter of Addie F., 22 AD3d 986, 987 [2005]).
Viewed in the light most favorable to petitioner (see Matter of Richard SS., 29 AD3d 1118, 1121 [2006]), the recordyields independent evidence corroborating the child's accusations of sexual contact. There wastestimony that the stepfather had hugged the child in a way which the mother had considered tobe inappropriate and for which she had chastised him. In her own testimony, the child admittedthat she had a plan to run away with a friend. This plan also was testified to, and apparentlyaborted by, her school principal. We cannot say that Family Court abused its discretion in findingthe child's earlier, out-of-court statement that she wanted to run away because her stepfather wassexually abusing her to be more credible than her later, in-court explanation that she wanted torun away so she could use the telephone and do other things forbidden at home. The child alsotestified that, following her accusations, her mother stopped working and told her that she wouldnever leave her alone with the stepfather. The testimony of the caseworker relating the mother'sstatement that she had observed a red mark or "hickey" on the child's neck served to corroboratethe child's out-of-court accusation that her stepfather had caused the mark by kissing her (see Matter of James C., 44 AD3d1148, 1149 [2007]). Based upon these and other factors noted by Family Court, we cannotsay that the court abused its discretion in finding the child's out-of-court accusations to becorroborated.
The credibility issues raised by the child's recantation also were for Family Court to resolvein the exercise of its broad discretion (see Matter of Kayla N., 41 AD3d 920, 922 [2007]; Matter of Frank Y., 11 AD3d 740,742 [2004]), and its determination will not be disturbed unless clearly unsupported by theevidence (see Matter of Kayla N., 41 AD3d at 922; Matter of Martha Z., 288AD2d 706, 707 [2001]). The court considered the circumstances of the recantation and found theexplanations offered by the child to be dubious. The evidence showed that the child had beenconcerned that if the stepfather were permanently removed from her home, her family wouldhave to move and her mother would have to get a second job. The child also reported that shewas punished for "telling" (see Matter of Karen BB., 216 AD2d 754, 756 [1995]), butafter recanting she was permitted to have privileges she had not previously enjoyed. FamilyCourt's decision to reject the recantation was further supported by the testimony of a sexual abusetherapist. Citing, among other things, the child's account of her "strange" life at home after theaccusations and her fear of residential placement, the therapist opined that the child's recantationwas false. In addition, because respondents did not testify, Family Court was permitted to drawthe strongest inference against them that the opposing evidence would allow (see Matter of Nathaniel II., 18 AD3d1038, 1039 [2005], lv denied 5 NY3d 707 [2005]). Thus, the recantationnotwithstanding, we find Family Court's findings of abuse and neglect to be sufficiently [*4]supported by the evidence.
We have considered respondents' remaining contentions and find them to be without merit.
Crew III, J.P., Peters, Mugglin and Kane, JJ., concur. Ordered that the order is affirmed,without costs.