| Matter of Miranda HH. (Thomas HH.) |
| 2011 NY Slip Op 00114 [80 AD3d 896] |
| January 13, 2011 |
| Appellate Division, Third Department |
| In the Matter of Miranda HH. and Others, Children Alleged to beAbused and/or Neglected. Albany County Department of Children, Youth and Families,Respondent; Thomas HH., Appellant. |
—[*1] Raymond White, Albany County Department of Children, Youth and Families, Albany, forrespondent. Jaya L. Connors, Delmar, Attorney for the Children. David P. Dylis, Ballston Spa, Attorney for the Child.
Egan Jr., J. Appeal from an order of the Family Court of Albany County (M. Walsh, J.),entered October 2, 2008, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondent's children to be abused and/or neglected.
Respondent and the mother—married in 1998—are the parents of threedaughters—April HH., Miranda HH. and Alexandria HH. (born in 1997, 1999 and 2002,respectively). Although respondent's and the mother's relationship was deteriorating by 2005,they continued to reside in the same household, with respondent being the primary caretaker ofthe children. In November 2006, the mother noticed that Miranda was masturbating excessivelyand, based on a prior incident of sexual abuse allegedly perpetrated on Miranda by a babysitter in2001, became concerned that her daughter had, again, been sexually abused. The mother began toregularly ask [*2]Miranda if someone was touching her and, onApril 12, 2007, Miranda informed her mother that respondent had touched her "pee-tail" whileshe was in the shower. Five days later, on the same date that respondent filed a petition seekingcustody of the children, the mother brought Miranda to the police station, where Mirandadisclosed two incidents of sexual abuse perpetrated on her by respondent.
Shortly thereafter, petitioner commenced this proceeding alleging that respondent abusedand/or neglected his children. Following a fact-finding hearing that occurred between November2007 and June 2008, Family Court found that respondent had abused Miranda and neglectedApril and Alexandria. Respondent now appeals, arguing that petitioner failed to establish a primafacie case of abuse and, accordingly, his motion to dismiss made at the close of petitioner's caseshould have been granted. Alternatively, respondent argues that he successfully rebutted theallegations in the petition.[FN1]
"In a Family Ct Act article 10 proceeding, petitioner bears the burden of proving abuseand/or neglect by a preponderance of the evidence" (Matter of Telsa Z. [Rickey Z.—Denise Z.], 71 AD3d 1246,1249 [2010] [citation omitted]; see Family Ct Act § 1046 [b] [i]). "A prima faciecase of abuse 'may be established by evidence . . . (1) [of] an injury to a child whichwould ordinarily not occur absent an act or omission of [the] respondent[ ], and (2) that [the]respondent[ ] [was] the caretaker[ ] of the child at the time the injury occurred' " (Matter of Jordan XX., 53 AD3d740, 740 [2008], quoting Matter of Philip M., 82 NY2d 238, 243 [1993]; seeFamily Ct Act § 1046 [a] [ii]). Culpability does not arise upon the mere showing of aprima facie case; rather, it "establishes a rebuttable presumption of parental culpability which thecourt may or may not accept based upon all the evidence in the record" (Matter of PhilipM., 82 NY2d at 246). Once a prima facie case is established, the burden "shifts to [the]respondent[ ] to rebut the evidence of parental culpability" (id. at 244; see Matter ofJordan XX., 53 AD3d at 740-741).
To meet its burden, petitioner presented the testimony of Lisa Sciortino, a caseworkeremployed by petitioner, Francine Balmaceda, a licenced clinical social worker who counseled themother and children, and Christina Hippchen, Miranda's third grade teacher. In addition, Apriland Miranda also testified prior to the close of petitioner's case.[FN2]Both Sciortino and Balmaceda testified that Miranda disclosed to them that respondent hadtouched her "pee-tail"—the area [*3]from where sheurinates. Sciortino, who was present during the police interviews of Miranda, testified thatMiranda revealed two incidents of sexual abuse—one when respondent touched her"pee-tail" while he was bathing her when she was approximately three or four years old, and asimilar incident occurring sometime after Christmas 2006, but before her birthday in March2007. After she was interviewed by police, Miranda signed a written statement in which sherelated two incidents of sexual abuse perpetrated on her by respondent—one occurringwhen she was "2 or 3 or 4" in the bathtub and one occurring when she was seven on the livingroom couch. Balmaceda testified that April disclosed that she had witnessed respondent touchMiranda on her "pee-tail." Balmaceda also testified that Miranda's frequent and publicmasturbation was behavior consistent with that demonstrated by other individuals she hascounseled during similar sexual abuse situations. Hippchen testified that during the 2007 schoolyear commencing in September, she noticed that Miranda would engage in inappropriatemasturbation in the classroom, but that Miranda did not seem to be aware of what she was doing.
During her in camera testimony, Miranda disclosed that respondent had inappropriatelytouched her on three occasions—the first when she was approximately two or three yearsold in respondent's bedroom, the second when she was slightly older while in the bath, and thethird in her bedroom. When asked how the touching made her feel, Miranda initially responded"unhappy," but then added that it was "relaxing too at the same time." April testified that whenshe was five or six years old, she observed respondent touch Miranda "in a bad way" through apartially-opened bedroom door.
To serve as the basis for a finding of abuse, the out-of-court statements of Miranda made toboth Sciortino and Balmaceda "required corroboration by any other evidence tending to supporttheir reliability" (Matter of Brooke KK.[Paul KK.], 69 AD3d 1059, 1060 [2010] [internal quotation marks and citationsomitted]). Along these lines, we note that "a relatively low degree of corroborative evidence issufficient in abuse proceedings" (Matterof Richard SS., 29 AD3d 1118, 1121 [2006] [internal quotation marks and citationsomitted]; see Family Ct Act § 1046 [a] [vi]; Matter of Justin CC. [Tina CC.], 77 AD3d 1056, 1057 [2010];Matter of Telsa Z. [Rickey Z.—Denise Z.], 71 AD3d at 1249). While respondentpoints to the various inconsistencies in Miranda's statements, including whether there were twoor three incidents of sexual abuse and where in the home those incidents are alleged to haveoccurred, Miranda's out-of-court statements were "corroborated in key respects" (Matter of Sabrina M., 6 AD3d759, 761 [2004]), specifically by her consistent report that respondent touched her "pee-tail"at least twice, with one incident occurring in the bathtub. While "some corroboration can beprovided through the consistency of a child's statements" (Matter of Richard SS., 55 AD3d 1001, 1003 [2008] [internalquotation marks and citations omitted]), Miranda's out-of-court statements were furthercorroborated by her own in camera testimony (see Matter of Justin CC. [Tina CC.], 77AD3d at 1059; Matter of Brandi U.,47 AD3d 1103, 1104 [2008]), and through the testimony of Balmaceda and Hippchenregarding Miranda's increased sexualized behavior (see Matter of Tanya T., 252 AD2d677, 678 [1998], lv denied 92 NY2d 812 [1998]; Matter of Ashley M., 235 AD2d858, 859 [1997]).
Family Court acknowledged that Miranda's in-court testimony was inconsistent with priorstatements on certain minor points, but found that her testimony was not rendered incredible as aresult, observing that, "rather, it suggests that she had sexual contact with her father many times."In this regard, we note that "the reliability of the corroboration, as well as issues of credibility,are matters entrusted to the sound discretion of Family Court" (Matter of Justin CC. [TinaCC.], 77 AD3d at 1057), and we find that Miranda's out-of-court statements [*4]were sufficiently corroborated such that petitioner established aprima facie case of abuse. Accordingly, the burden shifted to respondent to rebut the presumptionof parental culpability (see Matter of Philip M., 82 NY2d at 246; Matter of JordanXX., 53 AD3d at 740-741).
In opposition to petitioner's case, respondent testified on his own behalf and called themother, John Yuille, a forensic psychologist, and Amy Sangaline, a sexual abuse consultant. Themother testified that on April 12, 2007, Miranda disclosed the abuse to her, but that she did notimmediately go to the police. She testified that, instead, she left the children in respondent's carewhile she went to work, after which she spent the entire night out drinking with friends. Themother conceded that it was not until three days later, on April 17, 2007—the date thatrespondent filed a petition for custody—that she brought the children to the police stationwith respect to the allegations of abuse disclosed to her by Miranda. Finally, with respect toMiranda's allegations of sexual abuse, the mother admitted to telling April that if they did not goto the police station respondent would get custody.
Through Yuille's testimony respondent attempted to discredit the method by which Mirandawas interviewed at the police station, giving particular emphasis to the fact that such interviewswere not videotaped. Additionally, Yuille highlighted the lack of detail and inconsistencies inMiranda's various recollections, theorizing that such inconsistencies in a child's statements areindicative that the abuse did not happen, the abuse did happen and the child is unwilling toprovide details, or the child is unable to provide details because he or she is unable to expresshimself or herself. Yuille opined that, in some instances, a child's recollection of events mayblend the common features of a number of separate incidents while dropping out the minordifferences. Yuille added that a child's spontaneous reference to a feeling he or she had duringthe incident would be indicative of a real experience. Yuille also noted that Miranda's behavior inmasturbating could be explained by other factors, aside from sexual abuse, including anxiety,substance abuse or brain damage.
Sangaline, who interviewed the mother and children shortly after the sexual abuse report wasfiled, reported that Miranda first disclosed that respondent "touched [her] in a priv[ate] spot"when she was two or three years old, and then again when she was six or seven, the latterincident occurring in the living room. In a second interview, Miranda disclosed that respondenthad touched her on three separate occasions. Finally, respondent denied ever havinginappropriately touched Miranda, and testified to, among other things, the mother's alcoholrelapse shortly before the sexual abuse allegations, and to specifically overhearing the motherencouraging Miranda to "say that [respondent] touched you, you need to tell me he touched you,say that he touched you."
The attorney for Miranda and April then presented the testimony of, among other witnesses,Eileen Treacy, a psychologist, who testified about "confabulation" in sexual abuse cases, "when amemory is implanted" and is not an independent recollection of the event. Treacy explained thatit was not unusual for victims of sexual abuse to both love and hate their abuser, as is the casewith Miranda, and that in coached cases of abuse—one where the abused child isinstructed what to say by the parent alleging the abuse—the child tends to express onlyhate for the alleged abuser. Treacy opined that Miranda's willingness to visit with respondent andto blame the mother for falsely informing the court that she had no desire to do so was evidencethat this was not a coached case. Treacy also opined that excessive public masturbation indicatesthat a child may be "over-sexualized," and that Miranda's spontaneous description of respondent'stouch as "relaxing" is a positive sensory detail that would enhance her level of conflict in [*5]disclosing the abuse.
In its determination, Family Court acknowledged the mother's possible ulterior motives fordisclosing that Miranda had been sexually abused, and took note of her previous untruths,including her attempt to manipulate a drug test. However, Family Court found that in the contextof the testimony provided by Yuille and Treacy, both of whom stressed the significance ofspontaneity and sensory detail in evaluating sexual abuse cases, Miranda was truthfully recallingincidents that she had actually experienced rather than "reconstructing memories of events thatdidn't actually happen." Family Court further found that respondent's testimony denying theallegation of abuse was not credible. In according the appropriate deference to Family Court'sfindings, and in taking into consideration all the circumstances, we find that Family Court'sconclusion that Miranda was abused and that April and Alexandria are neglected is supported bya preponderance of the evidence (see Matter of Brooke KK. [Paul KK.], 69 AD3d at1061; Matter of Brandi U., 47 AD3d at 1104 [2008]). In reaching this conclusion, we aresatisfied that Family Court properly "weigh[ed] all the evidence in the record before making [its]determination" (Matter of AshleyRR., 30 AD3d 699, 700 [2006]); thus, we do not agree with respondent's assertion thatFamily Court's decision relied too heavily on the opinion of Treacy or on Miranda's descriptionof an incident of abuse as "relaxing."
Respondent's remaining contentions, including that Treacy was not formally certified as anexpert witness (see Matter of Kaitlyn R., 267 AD2d 894, 896 [1999]) and that the recordlacks evidence indicating he touched Miranda for the purpose of sexual gratification (seegenerally Matter of Olivia YY., 209 AD2d 892, 892 [1994]), have been reviewed and aresimilarly unavailing.
Spain, J.P., Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: Respondent has failed to addressFamily Court's determination of neglect in his brief and, therefore, has abandoned any challengewith respect thereto (see Country Club Partners, LLC v Goldman, 79 AD3d 1389, 1390 n[2010]; Kowalczyk v McCullough,55 AD3d 1208, 1210 n 2 [2008]).
Footnote 2: Miranda's and April's testimonywas unsworn, held in camera, outside the presence of respondent or the mother, but subject tocross-examination by counsel. "[T]his type of testimony taken at the fact-finding stage of aFamily Ct Act article 10 proceeding is fundamentally different from Lincoln testimonyand is not entitled to the protections afforded by Lincoln" (Matter of Justin CC. [Tina CC.], 77AD3d 207, 209 [2010]).