| Matter of Columbia County Dept. of Social Servs. v KristinM. |
| 2012 NY Slip Op 01161 [92 AD3d 1101] |
| February 16, 2012 |
| Appellate Division, Third Department |
| In the Matter of Columbia County Department of Social Services,Respondent, v Kristin M., Appellant. |
—[*1] Megan Mercy, Columbia County Department of Social Services, Hudson (James A. Carlucciof counsel), for respondent. Geraldine Pomerantz, East Greenbush, attorney for the children.
Stein, J. Appeal from an order of the Family Court of Columbia County (Czajka, J.), enteredOctober 13, 2010, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to hold respondent in willful violation of a prior order ofprotection.
Respondent is the mother of Aiden L. (born in 2004), Katie M. (born in 2007) and Sophia N.(born in 2010). In May 2009, petitioner filed a neglect petition with respect to Aiden and Katieagainst respondent and Aiden's father. In July 2010, petitioner also filed a neglect petition againstrespondent and Sean N., the father of Sophia,[FN1]concerning Sophia. All three children were eventually placed in foster care. In August 2010,Family Court issued a temporary order of protection on consent in connection with the neglectproceeding pertaining to Sophia. [*2]As relevant here, the orderof protection permitted respondent to exercise unsupervised visitation with the children, butprohibited her from allowing either Aiden's father or Sean N. to have contact with the children,except for court-ordered supervised visitation.
In September 2010, petitioner filed the present petition alleging that respondent violated theAugust 2010 order of protection by allowing Sean N. to have contact with the children in herhome on September 21, 2010. At the conclusion of a fact-finding hearing, Family Court foundthat respondent had violated the order of protection and had committed perjury in her testimonybefore Family Court on September 23, 2010. As a result, Family Court ordered, among otherthings, that the children remain in foster care and that respondent's visitation with the children besupervised, and then sentenced her to two days in jail, to be suspended pending her compliancewith all future court orders made in conjunction with the neglect proceedings. Respondent nowappeals and we affirm.
In support of the petition, petitioner offered Aiden's statements to petitioner's caseworker,Sarah San Materio, when he spoke with her at his school on September 22, 2010. San Materiotestified that the child told her that Sean N. would bring his son to visit at respondent's houseand, more specifically, that Sean N. had visited him at his mother's home and had made himpancakes the previous night. When asked why the caseworker who was at the home the previousday did not see Sean N., the child responded that Sean N. was hiding in a closet becauserespondent had told him to do so and that respondent said not to tell anyone. Respondentcontends that Aiden's out-of-court statements were not sufficiently corroborated. We disagree.The required degree of corroboration is relatively low and is satisfied by any other evidencetending to support the reliability of the previous statements (see Family Ct Act §1046 [a] [vi]; Matter of Kimberly CC. vGerry CC., 86 AD3d 728, 730 [2011]; Matter of Destiny F. [Angela F.], 85 AD3d 1229, 1229-1230[2011], lv dismissed 17 NY3d 854 [2011]; Matter of Joshua UU. [Jessica XX.—Eugene LL.], 81 AD3d1096, 1098 [2011]).
Here, petitioner also provided the testimony of caseworker Patricia Zindel. Zindel testifiedthat she visited respondent's home the night before the child spoke with San Materio andobserved several pairs of men's shoes in the hallway, which respondent later admitted belongedto Sean N. Zindel also observed that Aiden was eating pancakes in his room. Zindel furthertestified that there were closets in the home with doorways large enough for a person to walkthrough. In addition, during questioning of Aiden in camera,[FN2]Aiden repeated that he visits with Sean N.'s son at respondent's home and that Sean N.sometimes comes with him. He also stated that Sean N. cooks pancakes for him and sometimeswrestles with him at respondent's home. While respondent denied that Sean N. was in the homeon September 21, 2010 and some of Aiden's statements to Family Court were contradictory tostatements he previously made to San Materio, viewing the record as a whole and givingappropriate deference to Family Court's credibility determinations (see Matter of Shelby B., 55 AD3d986, 988 [2008]; see also Matter ofKimberly Z. [Jason Z.], 88 AD3d 1181, 1182 [2011]), we find that petitioner satisfiedits burden of proving, by clear and convincing evidence, that respondent willfully violated theorder of protection (see Matter of BlaizeF., 48 AD3d 1007, 1008-1009 [2008]).[*3]
Respondent's remaining contentions have beenconsidered and are either unpreserved or without merit.
Mercure, A.P.J., Spain, Kavanagh and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: We note that an order was laterentered vacating Sean N.'s acknowledgment of paternity of Sophia.
Footnote 2: We note that the attorney for thechild and a court reporter were present during this questioning and Aiden's statements were readback in open court. Respondent's attorney did not thereafter request an opportunity to questionhim.