| Matter of Brooke KK. (Paul KK.) |
| 2010 NY Slip Op 00318 [69 AD3d 1059] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Brooke KK., a Child Alleged to be Abused.Chemung County Department of Social Services, Respondent; Paul KK.,Appellant. |
—[*1] Samuel D. Castellino, Chemung County Department of Social Services, Elmira, forrespondent. Mitch Kessler, Law Guardian, Cohoes.
Garry, J. Appeal from an order of the Family Court of Chemung County (Hayden, J.),entered July 30, 2008, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to adjudicate respondent's child to be abused.
Respondent and his daughter, who was three years old at the time of these events, live inChemung County. In January 2007, the child's mother expressed concern to the child's physicianthat the child might have been sexually abused. The physician advised her to take the child to theemergency room for an examination. The next day, upon learning that the mother had not doneso, the physician made a "hotline" call, and petitioner initiated an investigation. Respondent andthe mother, accompanied by petitioner's caseworker and a State Police investigator, brought thechild to the emergency room, where she was examined and made statements that implicatedrespondent. Petitioner subsequently commenced this proceeding alleging that respondentengaged in abuse and severe abuse of the child, in that he sexually abused her by inserting his[*2]fingers into her vagina. After a fact-finding hearing, FamilyCourt found that the abuse allegation was supported by a preponderance of the evidence(see Family Ct Act § 1046 [b] [i]), but that the severe abuse allegation was notsupported by clear and convincing evidence (see Family Ct Act § 1046 [b] [ii]).The court conducted a dispositional hearing, found certain proposed terms and conditionsappropriate, and ordered respondent to comply with them. Respondent now appeals.
Respondent's sole contention is that the evidence presented at the fact-finding hearing waslegally insufficient to support Family Court's finding of abuse. A finding that a child wassexually abused requires proof that the respondent committed an act constituting a sexual crimeunder Penal Law article 130 (see Family Ct Act § 1012 [e] [iii]), consisting here ofthe class D felony of sexual contact with a person under the age of 11 years old (seePenal Law § 130.65 [3]). It was petitioner's burden to establish by a preponderance of theevidence that respondent committed the alleged acts (see Family Ct Act § 1046 [b][i]; Matter of Nathaniel II., 18AD3d 1038, 1039 [2005], lv denied 5 NY3d 707 [2005]). To meet this burden,petitioner offered the testimony of its caseworker, who testified that, in the caseworker'spresence, the child told an emergency room nurse that her vaginal area hurt and, when asked forthe reason, said "Daddy. Daddy's big finger." Later, the child allegedly made similar statementsdirectly to the caseworker and "shut down" in response to additional questioning about herfather. These out-of-court statements were admissible but, to serve as the basis for a finding ofabuse, required corroboration "by any other evidence tending to support their reliability"(Matter of Nicole V., 71 NY2d 112, 118 [1987] [internal quotation marks, citation andbrackets omitted]; see Family Ct Act § 1046 [a] [vi]). " '[A] relatively low degreeof corroborative evidence is sufficient in abuse proceedings' " (Matter of Sasha R., 24 AD3d 902,903 [2005], quoting Matter of Joshua QQ., 290 AD2d 842, 843 [2002]; accord Matter of Rebecca KK., 61AD3d 1035, 1036 [2009]).
As corroboration, Family Court relied upon the testimony of a State Police investigator that,during an interview, respondent initially denied wrongdoing, but later admitted that he hadtouched the child's vaginal area on two occasions and that he needed help. After signing awritten transcription of his statement, respondent allegedly shook the hand of anotherinvestigator, thanked him, and repeated that he needed help. While the court noted its concernthat medical evidence was lacking,[FN*]it found that the interviewing investigator's testimony as to the details of the interview washighly credible, that it refuted the opinion of a psychologist that respondent was easilymanipulated and had been pressured into making his statement, and that respondent's testimonythat his admissions were lies was weak and unconvincing. According the appropriate deferenceto the court's credibility determinations, we find that the child's statements were sufficientlycorroborated by respondent's admissions, and the court's conclusion that the child was abused issupported by a preponderance of the evidence and need not be disturbed (see Matter of Richard SS., 55 AD3d1001, 1003-1004 [2008]; Matter ofSenator NN., 11 AD3d 771, 772 [2004]; Matter of Joshua QQ., 290 AD2d at843; see also Family Ct Act § 1046 [b] [i]).[*3]
Mercure, J.P., Peters, Lahtinen and Kavanagh, JJ.,concur. Ordered that the order is affirmed, without costs.
Footnote *: The child's physician testifiedthat he observed some redness and soreness in her vaginal area but could reach no definiteconclusion as to its cause. Additionally, there was evidence that the child suffered from otherconditions that could have caused these symptoms and that the symptoms persisted for monthsafter contact with respondent ceased.