| Matter of Kayla J. (Michael J.) |
| 2010 NY Slip Op 05631 [74 AD3d 1665] |
| June 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kayla J., a Child Alleged to be Abused. AlbanyCounty Department for Children, Youth and Families, Appellant; Michael J.,Respondent. |
—[*1] Peter M. Torncello, Public Defender, Albany (George V. Collins III of counsel), forrespondent. Sharon Lee McNulty, Albany, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Albany County (Duggan, J.), enteredJanuary 9, 2009, which dismissed petitioner's application, in a proceeding pursuant to Family CtAct article 10, to adjudicate respondent's child to be abused.
Respondent is the father of a child born in 2001. He and the child's mother married in 2000and separated in 2004.[FN1]In subsequent custody proceedings, the mother became the child's [*2]primary physical and legal custodian, and respondent was awardeddesignated periods of visitation. Beginning in about September 2005, the mother repeatedlypetitioned for modification, alleging, among other things, that respondent was sexually abusingthe child. These allegations were never judicially resolved, as the various petitions culminated instipulated orders, were withdrawn, or remained unresolved when this proceeding wascommenced. As a result of the ongoing litigation, respondent had few periods of unsupervisedvisitation; during parts of 2005 and 2006, his visitation was either supervised or suspended, andhe had no unsupervised visits after October 2006.
In November 2007, petitioner commenced this proceeding alleging that respondent hadabused the child by subjecting her to sexual contact. The petition alleged that, in February 2007,the child allegedly made sexual comments and displayed sexualized behavior to several cousins,including inviting one cousin to play a game called "private doctor." The child told severaladults, including her mother and her two therapists, that she played this game with her father andthat it involved removing clothing, looking at each others' genitals, kissing, and hugging. Thepetition further alleged that, beginning in November 2005, the child had made other disclosuresof sexual contact with respondent and had displayed sexualized behavior. Family Courtdismissed the petition following the fact-finding hearing. Petitioner appeals.
In a lengthy, detailed and careful decision, Family Court evaluated the reliability of theinterviewing techniques used by petitioner's caseworker and the child's therapists, the mother'scredibility, and the reliability and corroboration of the child's disclosures, and concluded thatpetitioner had failed to carry its burden of proof by the requisite preponderance of the evidence(see Family Ct Act § 1046 [b] [i]; Matter of Jordan XX., 53 AD3d 740, 740 [2008]). Resolution ofthis very difficult case turned almost entirely on issues of credibility. " 'Family Court's findingsare entitled to great deference especially where the critical evidence is testimonial, in light of thecourt's ability to assess the witnesses' credibility, and should generally not be disturbed absent aconclusion that they lack a sound and substantial basis in the record' " (Matter of Blaize F., 50 AD3d1182, 1184 [2008], quoting Matter of Nathaniel TT., 265 AD2d 611, 614, [1999],lv denied 94 NY2d 757 [1999]). Here, although the record would also have supported adifferent conclusion (see Matter of Blaize F., 50 AD3d at 1184), we find that the court'sconclusions are adequately supported by a sound and substantial basis in the record.
Family Court's decision rested in large part on its "serious reservations" about the credibilityof the mother's testimony. The court found that, without intentionally falsifying her testimony,the mother's animosity toward respondent and what the court described as her "stronginvestment" in a finding that he had sexually abused the child had colored and distorted herobservations, memory, and testimony to such a degree that the child's disclosures to the mothercould not be found to have been reliably and accurately reported. As to respondent's testimonythat he never abused his daughter, the court acknowledged his strong motivation to lie, but alsofound that nothing in his testimony detracted from his credibility. Without directly determiningwhether respondent was telling the truth, the court accorded some weight to his willingness tosubject himself to the test of cross-examination and concluded that on the whole, his testimony"weigh[ed] modestly in his favor." It was Family Court's role to make these credibilitydeterminations, which are not to be disturbed unless they are "clearly unsupported by theevidence" (Matter of Addie F., 22AD3d 986, 987 [2005]). According the appropriate "[g]reat deference" to the court'sopportunity to view the witnesses and hear the testimony (Matter of Dana A. v Martin B., 72 AD3d 1136, 1138 [2010]), wefind that these determinations are supported by a sound and substantial basis in the record.[*3]
Family Court further found that the reliability of thechild's disclosures to therapists, caseworkers, and others had been tainted by the mother'sinfluence and by what the court found to be the suggestiveness of multiple interviews and otherexaminations undergone by the child, whom the court described as "the most questioned,examined, interviewed, evaluated and treated child" it had ever encountered. Petitioner objectsthat in reaching this conclusion, the court improperly considered information outside the record,in that a number of the interviews and examinations it enumerated were not discussed during thehearing. The court had advised the parties that it intended to take judicial notice of its priorproceedings and of the contents of its previous decisions and orders; to the extent that thesedocuments formed the basis of the court's knowledge of the child's history, it was entitled to relyon them, at least for background (seeMatter of Andrew U., 22 AD3d 926, 926-927 [2005]; see also Matter of Martin v Martin, 61AD3d 1297, 1298 n [2009]; Matterof Anjoulic J., 18 AD3d 984, 986 [2005]). Moreover, the court did not discuss theresults of the previous examinations, nor appear to rely in any manner on their substantivecontent; they were simply listed for the purpose of demonstrating a basis for the concern that thereliability of the child's disclosures had been tainted by "the fog created by the multiplicity ofinterviews." Petitioner does not contest the accuracy of this history, and given the limitedpurpose of the court's reference to these events and the presence of sufficient support for itsfactual findings in the record evidence, we find no error requiring reversal (see Matter of Treider v Lamora, 44AD3d 1241, 1243 [2007], lv denied 9 NY3d 817 [2007]; compare Matter ofNicole VV., 296 AD2d 608, 613 [2002], lv denied 98 NY2d 616 [2002]).
There is support in the record for Family Court's conclusion that the reliability of the child'sdisclosures was affected by adult influence or coaching. Several of her reported commentsreflected apparently adult viewpoints or legal knowledge, such as her reported wish to changeher last name to make it more difficult for her father to find her. The record also supports thecourt's conclusion that an insufficient causal link was established between the child'sindisputably age-inappropriate sexual knowledge and respondent's alleged misconduct. No timeframes were established by any witness for respondent's alleged act or acts of sexual misconduct,which the petition vaguely alleged to have taken place before November 2005 and/or beforeMarch 2007. Respondent had limited unsupervised contact with the child at any time, and at thetime of the 2007 intensification of her sexualized behavior and comments that led to theseproceedings, no unsupervised contact at all. Moreover, there was evidence that the child hadbeen exposed to sources of sexual knowledge unrelated to contact with respondent, such asage-inappropriate television programs and the child's own comment, reported by respondent andthe paternal grandmother, that she had learned certain sexual behavior at the mother's house.
Finally, there is record support for Family Court's conclusion that the child's out-of-courtstatements were insufficiently corroborated. Such statements are admissible in evidence atfact-finding hearings and, when adequately corroborated, may support a finding of abuse orneglect (see Family Ct Act § 1046 [a] [vi]; Matter of Kayla F., 39 AD3d 983, 984 [2007]). While "a relativelylow degree of corroborative evidence is sufficient" (Matter of Joshua QQ., 290 AD2d842, 843 [2002]), there is a "threshold of reliability" that must be met (Matter of ZachariahVV., 262 AD2d 719, 720 [1999], lv denied 94 NY2d 756 [1999]). "Whether thiscorroboration requirement has been satisfied is a 'fine judgment' entrusted in the first instance toFamily Court, which has the advantage of having heard and seen the various witnesses"(Matter of Jared XX., 276 AD2d 980, 981 [2000]), quoting Matter of ChristinaF., 74 NY2d 532, 536 [1989]).
The child's repeated disclosures to several adults are not, in themselves, sufficient since[*4]" 'the mere repetition of an accusation by a child is not sufficient tocorroborate his or her prior statement' " (Matter of Sasha R., 24 AD3d 902, 903 [2005], quoting Matterof Jared XX., 276 AD2d at 981). Petitioner contends, however, that her statements werefully corroborated by the testimony of her two therapists, who each opined that the child hadbeen sexually abused by her father. We disagree with Family Court that this testimony wasunacceptable as validation evidence on the ground that the therapists were not retained asobjective investigators. Although both therapists were retained for treatment rather than todetermine whether the child had been abused, a therapist's testimony may be received ascorroboration of a child's out-of-court statements; "[a]n expert's relationship to the party offering[him or] her does not disqualify the witness from giving opinion evidence and any bias [thewitness] may have had could be addressed on cross-examination" (Matter of Nicole V.,71 NY2d 112, 122 [1987]). However, the fact that such testimony is admissible in the firstinstance does not divest the court of its fact-finding authority to accept or reject the expert'sopinions (see Matter of Erinn G., 249 AD2d 879, 880-881 [1998]).
In a careful analysis of the therapists' testimony, Family Court noted that because their goalswere therapeutic rather than forensic, neither expert followed interviewing protocols designed toavoid tainting or influencing the child's testimony.[FN2]Moreover, the court found that both therapists proceeded from the assumption that the father hadsexually abused the child, and neither attempted to formulate any other working hypothesis.Finally, the court found that the mother had a distorting influence on what took place during thesessions in that she was present at most or all of them and she provided all of the history anddescriptions of the child's behavior from which the therapists worked. The therapists did not seekhistory or information from anyone else, including respondent; one never met with respondent atall, while the other met with him in only one session, which was cut short when he became upset.According the appropriate deference to the trial court's opportunity to see and hear the witnesses,and taking into account all the circumstances, including the mother's influence and the court'sassessment of her credibility, the child's age, and the absence of physical evidence of abuse, anobjective validator's assessment or other strong corroboration, we do not find that the courtabused its "considerable discretion" (Matter of Kelly F., 206 AD2d 227, 228 [1994]) inconcluding that the corroborative evidence was insufficient (compare Matter of JaredXX., 276 AD2d at 982).
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Though not fully documented inthe record, Family Court provided this history, apparently based on the court file.
Footnote 2: In this respect, we note ourconcern about Family Court's discussion of its views on the appropriate protocols to be followedin interviewing sexual abuse victims, which included appending a copy of John Yuille'sGuidelines for Interviewing Children to its decision. No information on these protocols wasoffered at trial, through expert testimony or otherwise. However, petitioner does not object onappeal to this aspect of the court's determination; moreover, the referenced techniques are widelyaccepted (see e.g. Matter of RichardSS., 29 AD3d 1118, 1123 [2006]; Matter of Jared XX., 276 AD2d at 982;Matter of Kelly F., 206 AD2d 227, 230-231 [1994, Mikoll, J., dissenting]). Further, wefind that any error the court may have committed by relying on this information is renderedharmless by the presence of record evidence supporting its conclusions.