| Matter of Justin CC. (Tina CC.) |
| 2010 NY Slip Op 07421 [77 AD3d 1056] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Justin CC. and Others, Children Alleged to beAbused and Neglected. Chemung County Department of Social Services, Respondent; Tina CC.et al., Appellants. (And Another Related Proceeding.) |
—[*1] Kelly M. Corbett, Fayetteville, for George CC., appellant. David Kagle, Chemung County Department of Law, Elmira, for respondent.
Peters, J. Appeals from two orders of the Family Court of Chemung County (Hayden, J.),entered January 5, 2009 and April 16, 2009, which granted petitioner's applications, in twoproceedings pursuant to Family Ct Act article 10, to adjudicate respondents' children to beabused and neglected.
Respondents George CC. (hereinafter the father) and Tina CC. (hereinafter the mother) arethe parents of three sons (born in 1996, 1999 and 2001). The mother also has a daughter from aprior relationship (born in 1992). On November 28, 2006, the daughter left a note with her schoolguidance counselor requesting that she be removed from her home. Upon meeting with theguidance counselor, the daughter reported that her parents forced her to stand in the corner earlierthat morning while they slapped her and pulled her hair, and that she was regularly subjected tophysical abuse by them, including being beaten with a belt on nearly a daily basis. [*2]That same day, the daughter met with one of petitioner'scaseworkers and reiterated the events that had transpired that morning. She also disclosed, amongother things, being frequently whipped with a belt with her pants and underwear down and beingmade to "pick cherries," a painful military exercise wherein she was made to stand with her armsoutstretched and simulate picking cherries off of a wall. Later that day, with the mother's consent,the daughter was placed into foster care.
Petitioner subsequently charged respondents with neglect of the children. In April 2007, thedaughter was freed for adoption upon the mother's surrender of her parental rights. Thereafter, inthe summer of 2007, the daughter revealed to her foster mother that the father had sexualintercourse with her on at least 20 occasions between the summer of 2006 and the time she wasplaced in foster care. During an interview with one of petitioner's caseworkers and a policeinvestigator, and in a later written statement, the daughter detailed the father's sexual abuse of herand reiterated when, where and how he had forced her to have sexual intercourse. Following thisinvestigation, the petitions were amended to allege that the father had sexually abused thedaughter and derivatively abused his sons.
A fact-finding hearing ensued, during the course of which the daughter provided swornin-court testimony outside the presence of respondents, but with all counsel present and affordeda full opportunity to cross-examine her. Following the hearing, Family Court found that thefather abused the daughter and derivatively abused the sons, and that both the mother and thefather neglected all four children. At the dispositional hearing, respondents each stipulated to theterms of a dispositional order and the father consented to the entry of an order of protection.Respondents appeal from the order sustaining the petitions,[FN*]with the father also appealing the dispositional order applicable to him.
The father contends that the findings of neglect and abuse against him were not establishedby a preponderance of the evidence, specifically claiming that Family Court should not havecredited the daughter's testimony and that the daughter's out-of-court statements were notsufficiently corroborated. We disagree. "A child's previous out-of-court allegations of abuse orneglect are admissible but, to support a finding of abuse or neglect, must be corroborated by[*3]other evidence introduced during the proceeding that tends toestablish their reliability" (Matter ofTelsa Z. [Rickey Z.—Denise Z.], 71 AD3d 1246, 1249 [2010] [internal quotationmarks and citations omitted]; see Family Ct Act § 1046 [a] [vi]; Matter of Rebecca KK., 61 AD3d1035, 1036 [2009]). A relatively low degree of corroborative evidence is sufficient to meetthis threshold (see Matter of KoleHH., 61 AD3d 1049, 1051-1052 [2009], lv dismissed 12 NY3d 898 [2009]; Matter of Caitlyn U., 46 AD3d1144, 1146 [2007]), and the reliability of the corroboration, as well as issues of credibility,are matters entrusted to the sound discretion of Family Court and will not be disturbed unlessclearly unsupported by the record (seeMatter of Brandi U., 47 AD3d 1103, 1104 [2008]; Matter of Kayla N., 41 AD3d 920, 922 [2007]; Matter of Addie F., 22 AD3d 986,987 [2005]).
Here, the testimony of the third parties as to the hearsay statements made by the daughterregarding the father's sexual and physical abuse were sufficiently corroborated by the daughter'sdetailed in-court testimony (see Matter of Christina F., 74 NY2d 532, 536-537 [1989]; Matter of Aaliyah B. [Clarence B.], 68AD3d 1483, 1484 [2009]; Matter of Brandi U., 47 AD3d at 1104), which wasconsistent in all material respects with her prior statements. Her out-of-court statementsregarding the father's sexual abuse were further corroborated by her written statement to police(see Matter of Sabrina M., 6 AD3d759, 761 [2004]). Family Court found the daughter's testimony to be "fully credible," andconcluded that the father's "string of denials" completely undermined his credibility. Accordingdue deference to the court's credibility assessments and factual findings, we conclude that itsdetermination that the daughter was abused and neglected by the father is soundly supported by apreponderance of evidence in the record and will not be disturbed (see Matter of Brooke KK. [Paul KK.],69 AD3d 1059, 1061 [2010]; Matter of Richard SS., 55 AD3d 1001, 1003-1004 [2008]; Matter of Senator NN., 11 AD3d771, 772 [2004]). Furthermore, a finding of derivative abuse and neglect was warranted as tohis sons inasmuch as the father's repeated sexual and physical abuse of the daughter"demonstrates such an impaired level of parental judgment as to create a substantial risk of harmfor any child in [his] care" (Matter of IanH., 42 AD3d 701, 704 [2007], lv denied 9 NY3d 814 [2007] [internal quotationmarks and citations omitted]; see Matter of Nathaniel TT., 265 AD2d 611, 614 [1999],lv denied 94 NY2d 757 [1999]; Matter of Amanda LL., 195 AD2d 708, 709[1993]).
The mother similarly asserts that the daughter's out-of-court statements were insufficientlycorroborated to support a finding that she neglected her children. Again, we disagree. Thedaughter's out-of-court statements regarding her mother's use of inappropriate physicalpunishment were corroborated by her sworn in-court testimony, as well as the mother's testimonythat she disciplined the daughter by spanking her with a belt, that she was present while the fatherdid so and that "cherry picking" was used as a form of punishment. The mother's commission ofthese acts of excessive corporal punishment, and her failure to intervene and protect the daughterfrom the father's physical abuse, furnishes ample support for Family Court's determination thatshe neglected the daughter (see Matterof Chelsea BB., 34 AD3d 1085, 1087 [2006], lv denied 8 NY3d 806 [2007];Matter of Kim HH., 239 AD2d 717, 719 [1997]). As for the finding of neglect against hersons, out-of-court statements made to petitioner's caseworkers by the two younger sons, whichserved to cross-corroborate each other (see Matter of Nicole V., 71 NY2d 112, 124[1987]; Matter of Justin O., 28AD3d 877, 879 [2006]), revealed that all three sons had been beaten with a belt by bothparents. Notably, each of the sons also reported being made to witness the corporal punishmentimposed on the daughter. Given the history of violence in this household as a means ofdiscipline, the record fully supports the finding that the mother's role in exposing and subjectingthe three boys to excessive physical punishment caused such a [*4]harmful impact on them to sufficiently support a finding of neglectas to each of them (see Matter of Chelsea BB., 34 AD3d at 1087; Matter of Richard T., 12 AD3d986, 987-988 [2004]; Matter of Catherine KK., 280 AD2d 732, 734-735 [2001]).
Finally, the father challenges the term of the order of disposition prohibiting him from havingany contact with his sons. Since he consented to the terms of the dispositional order, however, heis not aggrieved and therefore has no right to appeal from its provisions (see Matter of Bianca M., 57 AD3d1253, 1253 [2008], lv denied 12 NY3d 705 [2009]; Matter of Dawn N., 4 AD3d 634,635 [2004], lv dismissed 2 NY3d 786 [2004]). To the extent that the father argues thatthe order of protection improperly extended beyond the supervisory period contained in the orderof disposition (see Family Ct Act § 1056), he acknowledges that the order ofprotection has since been modified by Family Court to coincide with the term of supervisionimposed by the dispositional order. As such, the issue is now moot.
Mercure, J.P., Spain, Rose and Kavanagh, JJ., concur. Ordered that the order entered January5, 2009 is affirmed, without costs. Ordered that the appeal from the order entered April 16, 2009is dismissed, without costs.
Footnote *: When these appeals were firstbefore us, the father argued that the daughter's testimony during the fact-finding hearing, thetranscript of which remained sealed for the purposes of these appeals, should not be maintainedconfidential because it was not obtained during the course of a true Lincoln hearing. Weagreed, finding that testimony from a child during the fact-finding stage of a Family Ct Actarticle 10 proceeding, taken outside the presence of the respondent but with counsel present andpermitted to cross-examine the child, "is fundamentally different from Lincoln testimonyand is not entitled to the protections [of confidentiality] afforded by Lincoln" (Matter of Justin CC. [Tina CC.], 77AD3d 207, 209 [2010]). Accordingly, we granted the father's motion to unseal the daughter'stestimony and held these appeals in abeyance to permit the parties to rebrief and reargue theissues in accordance with the conditions set forth in that decision.