| Matter of Nicholas J.R. (Jamie L.R.) |
| 2011 NY Slip Op 03354 [83 AD3d 1490] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Nicholas J.R., a Child Alleged to be Abused.Cattaraugus County Department of Social Services, Respondent; Jamie L.R.,Appellant. |
—[*1]
Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.),entered April 8, 2010 in a proceeding pursuant to Family Court Act article 10. The order foundthat respondent had abused the subject child.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order of fact-finding and dispositiondetermining that she sexually abused her son. Contrary to the mother's contention, Family Court'sfindings of sexual abuse are supported by the requisite preponderance of the evidence (seeFamily Ct Act § 1046 [b] [i]; Matter of Colberdee C., 2 AD3d 1316 [2003]). "A child'sout-of-court statements may form the basis for a finding of [abuse] as long as they are sufficientlycorroborated by [any] other evidence tending to support their reliability" (Matter of Nicholas L., 50 AD3d1141, 1142 [2008]; see Family Ct Act § 1046 [a] [vi]; Matter of NicoleV., 71 NY2d 112, 117-118 [1987]; Matter of Alston C. [Frederick C.], 78 AD3d 1660 [2010]). Courtshave "considerable discretion in determining whether a child's out-of-court statements describingincidents of abuse have been reliably corroborated and whether the record as a whole supports afinding of abuse" (Colberdee C., 2 AD3d at 1317; see Nicholas L., 50 AD3d at1142), and "[t]he Legislature has expressed a clear 'intent that a relatively low degree ofcorroborative evidence is sufficient in abuse proceedings' " (Matter of Jessica N., 234AD2d 970, 971 [1996], appeal dismissed 90 NY2d 1008 [1996]; see Matter of Richard SS., 29 AD3d1118, 1121 [2005]). Here, the out-of-court statements of the child were sufficientlycorroborated by the testimony of an evaluating psychologist who opined that the child'sstatements made both to the psychologist and to a caseworker for child protective services duringa videotaped interview were credible (see Family Ct Act § 1046 [a] [vi]; Matter of Annastasia C. [Carol C.], 78AD3d 1579 [2010]; see also Alston C., 78 AD3d at 1661). Furthermore, "[a]lthough'repetition of an accusation by a child does not corroborate the child's prior account of [abuse]'. . . , 'the consistency of the child['s] out-of-court statements describing [themother's] sexual conduct enhances the reliability of those [*2]out-of-court statements' " (Matter of Yorimar K.-M., 309AD2d 1148, 1149 [2003]; see Richard SS., 29 AD3d at 1121-1122; Matter ofRhianna R., 256 AD2d 1184 [1998]).
We reject the further contention of the mother that the court erred in precluding her frompresenting certain evidence at the fact-finding hearing concerning the father's alleged corporalpunishment of the child. Pursuant to Family Court Act § 1046 (b) (iii), "only competent,material and relevant evidence may be admitted" at a fact-finding hearing on an article 10petition. "The terms material and relevant are generally used interchangeably and evidence isrelevant when it logically renders the existence of a material fact more likely or probable than itwould be without the evidence" (Matter of Rockland County Dept. of Social Servs. v BrianMcM., 193 AD2d 121, 124 [1993] [internal quotation marks omitted]). Although "[a]nyevidence tending to support the [mother's] position that the allegations of abuse were fabricated[is] relevant" (Matter of ChristopherL., 19 AD3d 597, 598 [2005]; see Rockland County Dept. of Social Servs., 193AD2d at 124), here the evidence concerning the father's alleged corporal punishment of the childwas not relevant with respect to the issue whether the mother sexually abused the child (see Matter of Lauren R., 18 AD3d761 [2005]).
Finally, the mother contends that the court improperly delegated to a psychologist theauthority to determine whether contact between the mother and the child should occur duringtherapy sessions. That provision appears in an order of protection that was annexed to and madea part of the order on appeal. "While we agree with the mother with respect to the merits of hercontention . . . , we conclude that, because the order [of protection] has expired,"the mother's contention is moot (Matterof Leah S., 61 AD3d 1402 [2009]). Present—Scudder, P.J., Centra, Carni,Sconiers and Green, JJ.