| Matter of Destiny UU. (Leon UU.) |
| 2010 NY Slip Op 03501 [72 AD3d 1407] |
| April 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Destiny UU., a Child Alleged to be SeverelyAbused, Abused and/or Neglected. Schenectady County Department of Social Services,Respondent; Leon UU., Appellant. |
—[*1] Jennifer M. Barnes, Schenectady County Department of Social Services, Schenectady, forrespondent. Mary Cosgrove Militano, Law Guardian, Scotia.
Rose, J. Appeals from two orders of the Family Court of Schenectady County (Powers, J.),entered August 29, 2008 and November 5, 2008, which, among other things, partially grantedpetitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicaterespondent's child to be abused and neglected.
When respondent's daughter was five years old, she made detailed accusations of sexualabuse against respondent which caused petitioner to commence this proceeding. Following afact-finding hearing at which the child testified in camera, Family Court found that theallegations of sexual abuse were supported by a preponderance of the evidence (seeFamily Ct Act § 1046 [b] [i]). Respondent now appeals, contending that the child'sstatements were insufficiently corroborated and should not have been credited.
A child's previous, out-of-court allegations of abuse or neglect are admissible to prove [*2]such acts, but they "must be corroborated by other evidenceintroduced during the proceeding that tends to establish their reliability"(Matter of Kole HH., 61 AD3d1049, 1051 [2009], lv dismissed 12 NY3d 898 [2009]; see Family Ct Act§ 1046 [a] [vi]; Matter of IanH., 42 AD3d 701, 703 [2007], lv denied 9 NY3d 814 [2007]). "[A] relativelylow degree of corroborative evidence is sufficient in abuse proceedings"(Matter of JoshuaQQ., 290 AD2d 842, 843 [2002]; see Matter of Kole HH., 61 AD3d at 1052), andwe accord Family Court considerable discretion in determining whether the out-of-courtstatements have been reliably corroborated (see Matter of Caitlyn U., 46 AD3d 1144, 1145-1146 [2007]). Wealso defer to Family Court's credibility determinations (see Matter of Chaquill R., 55 AD3d 975, 977 [2008], lvdenied 11 NY3d 715 [2009]; Matter of Randy V., 13 AD3d 920, 922 [2004]), and we view therecord in the light most favorable to petitioner (see Matter of Richard SS., 29 AD3d 1118, 1121 [2006]).
Here, the child's statements were corroborated by her demonstrated, age-inappropriateknowledge of sexuality and her graphic descriptions of respondent's sexual acts. In addition,petitioner's expert strongly opined that the child had been sexually abused and testified that itwas likely that respondent was the abuser (see Matter of Richard SS., 55 AD3d 1001, 1003 n 2 [2008]; Matter of Dylan Y., 4 AD3d 643,644 [2004], lv denied 2 NY3d 704 [2004]). The child's similar out-of-court statements tovarious adults that respondent had abused her were further corroborated by her unsworntestimony in camera (see Matter of Christina F., 74 NY2d 532, 536-537 [1989];Matter of Kole HH., 61 AD3d at 1052; Matter of Brandi U., 47 AD3d 1103, 1104 [2008]). Given thechild's corroborated statements, the undisputed proof that sexual abuse had occurred andrespondent's improbable testimony that he had never been alone with the child, we find that therecord provides a sound and substantial basis for Family Court's determination to credit the childover respondent, and we decline to disturb its finding that he abused her (see Matter of Nathaniel II., 18 AD3d1038, 1040 [2005], lv denied 5 NY3d 707 [2005]).
Respondent also contends that he received ineffective assistance of counsel because FamilyCourt found respondent's claim that he never touched the child's anus to be inconsistent with oneof his counsel's statements in summation. We read counsel's remark, however, as an alternateinnocent explanation if the court found that such touching had occurred, and not as impugningrespondent's credibility. In any event, the record reveals that defense counsel was thoroughlyprepared, extensively cross-examined petitioner's witnesses, made appropriate objections andpursued a viable defense. In view of the totality of the circumstances here, we would concludethat respondent received meaningful representation (see Matter of Chaquill R., 55 AD3dat 977; Matter of James U., 55AD3d 972, 973 [2008]).
Mercure, J.P., Peters, Stein and McCarthy, JJ., concur. Ordered that the orders are affirmed,without costs.