| Matter of Blaize F. |
| 2008 NY Slip Op 02916 [50 AD3d 1182] |
| April 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Blaize F. and Others, Children Alleged to beAbused and/or Neglected. Clinton County Department of Social Services, Respondent;Christopher F., Appellant. |
—[*1] John Dee, Clinton County Department of Social Services, Plattsburgh, for respondent. G. Scott Walling, Law Guardian, Queensbury. Marsha K. Purdue, Law Guardian, Glens Falls.
Lahtinen, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered July 28, 2006, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to adjudicate the subject children to be abused and/or neglected.
Respondent resided with his wife (hereinafter the mother), the mother's two daughters (bornin 1991 and 1993), and the couple's son (born in 1996). In March 2006, petitioner, acting uponinformation provided in December 2005 by the oldest child about an incident that allegedlyoccurred when she was 11 years old, commenced the instant proceeding pursuant to Family CtAct article 10 asserting that respondent abused and neglected the oldest child and derivativelyneglected the two other children. The oldest child had revealed that, while the other childrenwere in the house and the mother was at work, respondent had a conversation with her about sex,including masturbation. According to the oldest child, during that conversation he directed her to[*2]put on pink thong underwear and then placed his fingersinside her vagina, purportedly to show her how to masturbate. While respondent acknowledgedhaving a conversation with the child about sex and masturbation, he adamantly denied evertouching her and contended that she was retaliating against him because he was the disciplinarianin the house. The mother acknowledged that the child had previously revealed to her theconversation about masturbation, but she also recalled that, upon questioning by her, the childhad stated at that time that respondent had not touched her.
Family Court credited the oldest child's testimony and determined, among other things, thatshe was a neglected and abused child and that the other two children were neglected andderivatively neglected. The children remained with their mother and the disposition includedvarious terms as well as protective orders precluding respondent from any contact with the oldestchild, permitting supervised visitation with the other daughter if the mother so desired, andpermitting supervised visitation with the son. Respondent appeals.
Respondent initially argues that Family Court committed reversible error when it refused toallow him to call a state trooper who, according to respondent's offer of proof, would havetestified that the oldest child lied to the trooper during the investigation of an unrelated matter."The general rule of evidence in this State concerning the impeachment of witnesses with respectto collateral matters is that the cross-examiner is bound by the answers of the witness toquestions concerning collateral matters inquired into solely to affect credibility . . .[and] the party who is cross-examining a witness cannot introduce extrinsic documentaryevidence or call other witnesses to contradict a witness' answers concerning collateral matterssolely for the purpose of impeaching that witness' credibility" (People v Pavao, 59 NY2d282, 288-289 [1983] [internal quotation marks and citations omitted]; see People vInniss, 83 NY2d 653, 658 [1994]; People v Schwartzman, 24 NY2d 241, 245 [1969],cert denied 396 US 846 [1969]). During cross-examination, the oldest child was askedabout an incident that was unrelated to the allegations in this proceeding in which a trooper cameto the home in May 2006. She denied during such questioning that she had told the trooper thatno one else was at the home. Respondent then sought to produce the trooper to testify both thatshe stated to him that no one else was there and that such statement was false. Petitioner objectedand Family Court sustained the objection. Since this line of proof involved a collateral matterdirected solely at the witness's credibility, respondent was bound by the answer of the oldestchild during cross-examination and Family Court did not err in precluding further pursuit of thecollateral issue (see People vBellamy, 26 AD3d 638, 641 [2006]).
Next, respondent and the Law Guardian for the son contend that the evidence did not supportthe finding of derivative neglect. The son's Law Guardian initially challenges the underlyingfactual findings regarding the oldest child, upon which the derivative findings as to the other twochildren are premised. It is well settled that "Family Court's findings are entitled to greatdeference especially where the critical evidence is testimonial, in light of the court's ability toassess the witnesses' credibility, and should generally not be disturbed absent a conclusion thatthey lack a sound and substantial basis in the record" (Matter of Nathaniel TT., 265AD2d 611, 614 [1999], lv denied 94 NY2d 757 [1999] [citations omitted]; see Matter of Brandi U., 47 AD3d1103, 1104 [2008]; Matter of Angelina AA., 211 AD2d 951, 952 [1995], lvdenied 85 NY2d 808 [1995]). Here, there clearly was conflicting testimony and a differentfactual finding regarding respondent certainly was feasible. Nevertheless, Family Court creditedthe oldest child's testimony as to the key contentions. That determination has a basis in the recordsufficient to accept the credibility determinations of Family Court. The fact that the child's [*3]testimony lacked some consistency on marginal matters does notrequire a wholesale rejection of her testimony (see Matter of Nathaniel TT., 265 AD2d at614).
Both respondent and the son's Law Guardian further contend that the abuse of the oldestchild was insufficient to establish derivative neglect. "[W]hile a finding of sexual abuse of onechild does not, by itself, establish that other children in the household have been derivativelyneglected," such a finding is appropriate where the proof found credible by Family Court"evinced a flawed understanding of a parent's duties and impaired parental judgment" that placedthe other children at risk of harm (Matter of Sabrina M., 6 AD3d 759, 761 [2004]; see Matter of Doe, 47 AD3d 283,287 [2007]; Matter of Jewle I., 44AD3d 1105, 1106 [2007]). The evidence credited by Family Court included that respondentwas the only adult home with the children, he started a conversation about sex with the11-year-old child in a bedroom, he had her change into adult lingerie, and he placed his fingers inher vagina for about one to two minutes. During this time, the younger children were in the houseand came to the closed bedroom door inquiring about the location of their sister. This evidencesufficiently reveals such flawed parental judgment as to create a risk of harm to the other childrenand, accordingly, we are unpersuaded that Family Court erred in making a finding of derivativeneglect.
We do, nevertheless, conclude that Family Court's finding of direct neglect of the twoyounger children was procedurally improper. The petition did not allege direct neglect as to thesetwo children nor was any amendment of the allegations of the petition to conform to the proofsought or authorized (see Family Ct Act § 1051 [b]; Matter of Latifah C., 34 AD3d798, 800 [2006]; Matter of JosephO., 28 AD3d 562, 563 [2006]; Matter of Stephanie R., 21 AD3d 417, 418 [2005]).
Peters, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the order is modified, onthe law and the facts, without costs, by deleting the provision finding that respondent directlyneglected the two younger children, and, as so modified, affirmed.