| Matter of Kimberly CC. v Gerry CC. |
| 2011 NY Slip Op 05908 [86 AD3d 728] |
| July 14, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kimberly CC., Respondent, v Gerry CC.,Appellant. (And Another Related Proceeding.) |
—[*1] Diane V. Bruns, Ithaca, for respondent. Nina C. Aasen, Ithaca, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Tompkins County (Sherman, J.),entered April 16, 2010, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the married butseparated parents of Kaylee CC. (born in 2005). The parties stipulated to a custody order inJanuary 2009 which provided, among other things, for joint custody with primary physicalcustody to the mother and weekend parenting time with the father. The mother commenced thefirst of these proceedings in May 2009 seeking a modification of that order—to includesole custody to her and termination of the father's visitation—based upon allegations thatthe child had reported to the mother that the father "likes to rub her 'pea pea [sic].' " Themother reported this allegation to the Tompkins County Department of Social Services(hereinafter DSS). During the course of an investigation by DSS, Family Court issued atemporary order which, among other things, limited the father's parenting time to three hours ofsupervised visitation every Saturday. In July 2009, after DSS determined the allegation of sexualabuse to be unfounded, the attorney for the child unsuccessfully requested that anotherinvestigation be [*2]ordered by Family Court and the father'sapplication for reinstatement of the original custody order was granted.
In August 2009, the child allegedly made another statement to the mother indicating that thefather had rubbed her on her vaginal area outside of her clothing and complained that the areawas sore. Upon observing that the area was inflamed and red, the mother brought the child to theemergency room, where she was examined by a sexual assault nurse examiner (hereinafter thenurse), to whom the child repeated the allegations that she had made to her mother, whilepointing to her vulva. The mother thereafter filed an amended petition seeking modification ofthe custody order to, among other things, award her sole custody and require that the father'svisitation be supervised. In addition to the foregoing, the mother alleged that the child had madeconsistent disclosures of sexual abuse by the father to various other persons and that she hadengaged in sexualized and self-destructive behaviors. The father denied the material allegationsof the mother's amended petition and filed a "counter-petition" seeking sole custody of the child.After a fact-finding hearing and a Lincoln hearing, Family Court determined that thechild's out-of-court statements were sufficiently corroborated and that the evidence supported afinding that the father had engaged in inappropriate sexual touching of her. Based upon suchfinding, the court granted the mother's petition, awarding her sole custody and limiting thefather's parenting time to supervised visitation on Saturdays from 10:00 a.m. to 7:00 p.m. Thefather now appeals.
We affirm. In order to warrant the requested modification of the existing custody order, themother was required to demonstrate a " 'sufficient change in circumstances reflecting a real needfor change [in the established custody arrangement] in order to insure the continued best interestof the child' " (Matter of Rue vCarpenter, 69 AD3d 1238, 1239 [2010], quoting Matter of Martin v Martin, 61 AD3d 1297, 1298 [2009]; see Matter of Henderson v MacCarrick,74 AD3d 1437, 1439 [2010]). Here, as Family Court posited, the "crucial determination"was whether the evidence was sufficient to establish the truth of the allegations that the fatherhad inappropriately touched the child. If so, such evidence would clearly establish a change incircumstances such that it would be contrary to the child's best interest to continue to haveunrestricted contact with the father (seeMatter of Joseph YY. v Terri YY., 75 AD3d 863, 866 [2010]).
A child's out-of-court statements are admissible in a Family Ct Act article 6 proceeding if thestatements relate to abuse or neglect (see Family Ct Act § 1046 [a] [vi]; Matter of Bartlett v Jackson, 47 AD3d1076, 1077 [2008], lv denied 10 NY3d 707 [2008]). However, such statementscannot constitute the sole basis for a finding of abuse or neglect unless they are sufficientlycorroborated (see Family Ct Act § 1046 [a] [vi]; Matter of Bernthon v Mattioli, 34AD3d 1165, 1165 [2006]). The degree of corroboration required is relatively low (seeMatter of Joshua QQ., 290 AD2d 842, 843 [2002]), and Family Court has considerablediscretion in determining the sufficiency of the corroboration (see Matter of Bernthon vMattioli, 34 AD3d at 1166). Although corroboration has a minimum " 'threshold ofreliability' " that must be met (Matter ofKayla J. [Michael J.], 74 AD3d 1665, 1669 [2010], quoting Matter of ZachariahVV., 262 AD2d 719, 720 [1999], lv denied 94 NY2d 756 [1999]), it may be satisfiedby "[a]ny other evidence tending to support the reliability of the previous statements" (Matterof Jared XX., 276 AD2d 980, 981 [2000] [internal quotation marks omitted]). Upon ourreview of this record, we discern no abuse of Family Court's discretion in determining that thechild's out-of-court statements were admissible and that the evidence was sufficient to establishthe requisite change in circumstances.[*3]
The evidence included the testimony of the mother, thenurse, a childcare provider and several relatives to whom the child had made similar statementsregarding her father rubbing her vaginal area. One of those witnesses testified that the childstated that the father's touching showed her "he loved [her] the mostest," a statement that FamilyCourt found to be "more indicative of . . . a statement made by an adult perpetratorrather than an imaginative child." While mere "repetition of an accusation does not corroborate achild's prior statement" (Matter ofCobane v Cobane, 57 AD3d 1320, 1321 [2008], lv denied 12 NY3d 706[2009]), Family Court accurately noted here that the child's statements were "consistent in detail,while not indicating a repetition of phrasing that might indicate coaching or coercion" (see Matter of Kole HH., 61 AD3d1049, 1052 [2009], lv dismissed 12 NY3d 898 [2009]). In addition, severalwitnesses testified that the child exhibited violent outbursts, self-abusive behavior and sexualbehavior such as stimulating or rubbing herself, which appeared to coincide with the time framein which the alleged incidents of sexual abuse occurred. This evidence, as well as the testimonyfrom the Lincoln hearing (see Matter of Kole HH., 61 AD3d at 1052), providesufficient indicia of reliability to satisfy the requirement that the child's out-of-court statementsbe corroborated. Moreover, although the father presented conflicting evidence, we accord greatdeference to Family Court's ability to evaluate the testimony and assess the credibility of thewitnesses (see Matter of Bush vBush, 74 AD3d 1448, 1450 [2010], lv denied 15 NY3d 711 [2010]; Matter of Siler v Wright, 64 AD3d926, 928 [2009]), and we conclude that there was a sound and substantial basis in the recordto warrant modification of the custody order. "Moreover, although by no means determinative,this conclusion is in accord with the position advanced by the [attorney for the child]" (Matterof Siler v Wright, 64 AD3d at 929).
The father's remaining contentions have been considered and are unavailing.
Mercure, J.P., Peters, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.