| Matter of Kole HH. |
| 2009 NY Slip Op 02502 [61 AD3d 1049] |
| April 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Kole HH. and Another, Children Alleged to beNeglected. Broome County Department of Social Services, Appellant-Respondent; ThomasHH., Respondent-Appellant, et al., Respondent. |
—[*1] Kelly M. Corbett, Fayetteville, for respondent-appellant. Scott B. Nadel, Law Guardian, Binghamton.
Kavanagh, J. (1) Cross appeals from an order of the Family Court of Broome County(Charnetsky, J.), entered April 17, 2008, which dismissed petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to adjudicate respondents' children to beneglected, and (2) appeal from an order of said court, entered May 29, 2008, which issued anorder of protection.
Respondent Thomas HH. (hereinafter respondent) and respondent Linda QQ. (hereinafter themother) are the parents of two sons, Kole HH. and Andrew HH. (born in 1999 and 2007,respectively). The mother, in addition to caring for her own two children, on occasion had chargeof her cousin's nine-year-old daughter (hereinafter the victim) and provided this care at the homeshe shared with respondent. The victim, who is described as learning disabled, claimed thatduring the period of time that she spent at this home, respondent subjected her to numerousinstances of sexual abuse. She also alleged that she observed respondent, on occasion, [*2]having inappropriate contact with his eldest son, Kole, as well asanother neighborhood child.[FN1]After the police were contacted, respondent was arrested and charged with rape in the firstdegree. These charges were ultimately dismissed.
After respondent's arrest, petitioner commenced this proceeding claiming that, as a result ofthe allegations of sexual abuse, both respondent and the mother had neglected their own twochildren and sought an order removing the children from respondents' custody and placing thechildren in the custody of petitioner. As for the mother, the petition alleged that, after learning ofthe victim's allegations, she failed to take necessary precautions to ensure the safety and welfareof her own children in regard to any contact they might have with respondent. In September2007, the mother consented to an entry of a finding of neglect based, in part, upon her failure torespond appropriately to the allegations of sexual abuse as well as her failure to fully complywith Family Court's order directing the children's temporary removal from her care.[FN2]
A fact-finding hearing was held as to the allegations made in the petition against respondentat the conclusion of which Family Court found that respondent had sexually abused the victim.However, the court concluded that this evidence was legally insufficient to support a finding thatrespondent had derivatively neglected his own children because respondent was not a personlegally responsible for the care of the victim at the time the alleged abuse occurred and,therefore, his sexual assault of this child could not be used as a basis for such a finding. As aresult, Family Court dismissed the petition against respondent, but extended the terms of theorder of protection requiring the children to remain in the custody of petitioner and directing thatrespondent not have any unsupervised contact with them.[FN3]Petitioner now appeals, challenging the court's dismissal of the neglect petition. Respondentcross-appeals, taking issue with Family Court's finding that he had sexually abused the victim.He also challenges the court's legal authority to extend the terms of the order of protection giventhe dismissal of the underlying petition.
Initially, respondent claims that the out-of-court statements made by the victim wereessentially uncorroborated and should not have been admitted into evidence at the hearing toestablish that he had sexually abused her. Family Ct Act § 1046 (a) (vi) provides that"previous statements made by [a] child relating to any allegations of abuse or neglect shall beadmissible in evidence" (see Matter of Christina F., 74 NY2d 532, 536 [1989]; Matter of Ian H., 42 AD3d 701,702-703 [2007], lv denied 9 NY3d 814 [2007]). However, to prove abuse or neglect,such out-of-court statements must be corroborated by other evidence introduced during theproceeding that tends to establish their reliability (see Family Ct Act § 1046 [a][vi]; Matter of Christina F., 74 NY2d at 536-537; Matter of Ian H., 42 AD3d at703). We also note that Family Court is vested with considerable discretion in determining theadmissibility of such statements and the threshold [*3]that mustbe met for other evidence to provide the requisite corroboration is relatively low (see Matter of Caitlyn U., 46 AD3d1144, 1146 [2007]; Matter of KaylaN., 41 AD3d 920, 922 [2007]; Matter of Joshua QQ., 290 AD2d 842, 843[2002]).
Here, Family Court allowed into evidence tape recordings of two interviews given by thevictim to caseworkers during which she described in excruciating detail and, with disturbingclarity, the particulars of the claimed sexual abuse. Each interview—and the victim'sunsworn testimony at the hearing—established that her knowledge of the human anatomyand her graphic description of the alleged sexual activity were clearly inappropriate for a child ofher age. The details that the child provided were especially telling, given that she is learningdisabled and her ability to communicate is, to some extent, limited.[FN4]
In addition, the victim's in-court testimony, while unsworn and somewhat limited, wasessentially consistent with statements that she made during each taped interview, as well as thoseshe gave to her mother when she first disclosed that she had been abused by respondent (compare Matter of Kayla F., 39 AD3d983, 984-985 [2007]). Any contradictions and discrepancies that may have existed in thesestatements and the victim's unsworn testimony were fully explored at the hearing and were foundby Family Court not to affect the credibility of her claim that respondent had, on numerousoccasions, subjected her to sexual abuse. Moreover, it was essentially uncontroverted at thehearing that the victim was present at the home and in the company of respondent during therelevant time periods when it is claimed that the abuse occurred. As a result, we find that ampleevidence existed to establish the reliability of these out-of-court statements made by the victimand, when considered with the other evidence introduced at the hearing, justified the finding ofabuse (see Matter of Christina F., 74 NY2d at 537; Matter of Ian H., 42 AD3d at703).[FN5]
We do not agree with Family Court that respondent's sexual abuse of this nine-year-old childcannot provide the legal basis for a finding of derivative neglect of his own two children. [*4]While respondent, on these facts, may not qualify as a personlegally responsible for the victim (see Family Ct Act § 1012 [g]), such conduct, atthe very minimum, reveals a fundamental and profound flaw in respondent's understanding of hisparental responsibilities and " ' "demonstrates such an impaired level of parental judgment as tocreate a substantial risk of harm for any child in [his] care" ' " (Matter of Ian H., 42AD3d at 704, quoting Matter of SheenaD., 27 AD3d 1128, 1128 [2006], mod 8 NY3d 136 [2007]; see Matter of Jewle I., 44 AD3d1105, 1107 [2007]). The fact that a child will be seriously harmed by such conduct is soobvious that it leads to the inescapable conclusion that "the perpetrator lacks any capacity to carefor and protect the other children in his or her care" (Matter of Cadejah AA., 33 AD3d 1155, 1157 [2006]). This isespecially true where, as here, evidence exists that the abuse was perpetrated in the family homewhile respondent's own children were present. As a result, respondent's sexual abuse of aneighborhood child within the family home provides ample support for a finding that by suchconduct he derivatively neglected his own two children (see Matter of Ian H., 42 AD3dat 704; Matter of Cadejah AA., 33 AD3d at 1157).
Therefore, we reverse so much of Family Court's order as dismissed the neglect petitionagainst respondent, grant the petition with a finding that respondent derivatively neglected Koleand Andrew, and remit to Family Court for further proceedings consistent with this decision. Inthe interim, and based upon this conclusion regarding the neglect petition, the order of protectionissued by Family Court regarding respondent and Kole and Andrew shall be continued.
Cardona, P.J., Rose, Kane and Stein, JJ., concur. Ordered that the order entered April 17,2008 is modified, on the law and facts, without costs, by reversing so much thereof as dismissedthe petition against respondent Thomas HH.; petition granted to the extent of finding that saidrespondent derivatively neglected the subject children and matter remitted to the Family Court ofBroome County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed. Ordered that the order entered May 29, 2008 is affirmed, without costs.
Footnote 1: Kole, when asked whetheranyone had ever touched him inappropriately, stated that a family member—achild—had touched his private parts. He denied that an adult had ever subjected him toinappropriate contact. The neighborhood child denied that respondent had ever sexually abusedher.
Footnote 2: The finding that the mother hadneglected her children is not an issue in this appeal.
Footnote 3: Respondent has had supervisedvisits with the children.
Footnote 4: While the victim's mothertestified to pronounced changes in the child's behavior after she disclosed the abuse and nolonger had any contact with respondent, petitioner failed to present any expert testimonyconnecting this change in behavior to the alleged abuse (see Matter of Kayla F., 39 AD3d 983, 984-985 [2007]; Matterof Zachariah VV., 262 AD2d 719, 719-720 [1999], lv denied 94 NY2d 756 [1999]).
Footnote 5: A nurse practitioner testifiedthat she found no evidence of abuse during her external physical examination of the victim butthat such a negative finding "neither confirmed nor denied" the fact that the child had been thevictim of sexual abuse. She further testified to performing no less than 400 such examinations,and that in approximately 90% of these examinations no signs of physical trauma are found. As aresult, we are unconvinced, especially in light of the victim's age and her learning disability, thatthe results of the physical examination as performed by the nurse practitioner mandate a findingthat the child was not subject to some form of sexual abuse.