| Matter of Olivia C. (Scott E.) |
| 2012 NY Slip Op 05569 [97 AD3d 910] |
| July 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Olivia C. and Others, Children Alleged to beAbused and/or Neglected. Schoharie County Department of Social Services, Respondent; ScottE., Appellant. (Proceeding No. 1.) In the Matter of Olivia C. and Others, Children Alleged to beAbused and/or Neglected. Schoharie County Department of Social Services, Respondent; ChasityF., Appellant. (Proceeding No. 2.) |
—[*1] Paul J. Connolly, Delmar, for Chasity F., appellant. David P. Lapinel, Schoharie County Department of Social Services, Schoharie, forrespondent. Christine E. Nicolella, Delanson, attorney for the children.
Rose, J.P. Appeals from three orders of the Family Court of Schoharie County (Bartlett III,J.), entered October 13, 2010 and March 16, 2011, which granted petitioner's applications, in twoproceedings pursuant to Family Ct Act article 10, to adjudicate the subject children to be abusedand/or neglected.
Petitioner commenced these proceedings against respondent Scott E. (hereinafter respondent)and respondent Chasity F. (hereinafter the mother), alleging, among other things, that respondentabused the mother's daughter Olivia (born in 1994) by raping her on two occasions in 2006 andthat the mother neglected Olivia and her other three children (born in 1995, 1997 and 2003)based on, among other things, her willingness to allow contact between respondent and thechildren despite her awareness of pending criminal charges against him in Maine alleging that hehad sexually abused his biological daughter from another relationship. After a combinedfact-finding hearing, Family Court determined that the credible evidence established thatrespondent had sexually abused Olivia and that the mother was aware of the Maine criminalcharges at the time yet failed to take steps to protect the children. Thus, the court sustained thepetitions against respondent and the mother. Respondent and the mother consented to thedisposition, conditioned on the preservation of their right to appeal.
Initially, we agree with the attorney for the children that respondent's notice of appeal fromthe fact-finding order is untimely (see Family Ct Act § 1113). However,respondent also appeals from the dispositional order and we may treat his notice of appeal fromthat order as premature but valid (see CPLR 5520 [c]; Matter of Paige AA. [Anthony AA.], 85 AD3d 1213, 1215 n 2[2011], lv denied 17 NY3d 708 [2011]; Matter of Joshua UU. [Jessica XX.—Eugene LL.], 81 AD3d1096, 1097 n 2 [2011]), thereby bringing up for review the predicate fact-findingdetermination (see CPLR 5501 [a] [1]; Matter of Santino B. [Lisette C.], 93 AD3d 1086, 1087 [2012];Matter of Christina BB., 291 AD2d 738, 738 [2002], lv denied 98 NY2d 605[2002]). We also find that respondent was not in default, as his attorney appeared at thedispositional hearing, indicated respondent's desire to appear and offered a reasonable excuse forhis nonappearance, namely his continued incarceration in Maine and inability to schedule anappearance by telephone (see Matter ofHarris-Wilks v Harris, 56 AD3d 1063, 1063-1064 [2008]; Matter of Cecelia A.,199 AD2d 582, 583 [1993]). As for the mother's notice of appeal, while it erroneously describesthe fact-finding order, we exercise our discretion pursuant to CPLR 5520 (c) to treat it as apremature but valid appeal from the dispositional order so as to bring the fact-findingdetermination up for review (see CPLR 5501 [a] [1]; Matter of Joshua UU. [JessicaXX.—Eugene LL.], 81 AD3d at 1197 n 2; Matter of Heaven C. [Julia B.], 71 AD3d 1301, 1302 n [2010]).
Turning to the merits, respondent limits his appeal to the sufficiency of the corroborationoffered for the two out-of-court statements by Olivia in which she details her charges of rape. Forher part, the mother contends that the lack of corroboration evidence would require dismissal ofthe finding that she neglected the children. She also argues that she was unaware of the pendingcriminal charges in Maine until after Olivia reported respondent's abuse. We affirm.[*2]
In order to support a finding of abuse, the child's unswornout-of-court statements must be corroborated, and "[a]ny other evidence tending to support thereliability of the . . . statements, including . . . the types of evidencedefined in this subdivision shall be sufficient corroboration" (Family Ct Act § 1046 [a][vi]; see Matter of Kimberly CC. vGerry CC., 86 AD3d 728, 730 [2011]; Matter of Miranda HH. [Thomas HH.], 80 AD3d 896, 898 [2011]).Proof of the abuse of another child is the type of evidence defined in the subdivision (seeFamily Ct Act § 1046 [a] [i]). We also note that Family Court has considerable discretionin determining issues of credibility as well as whether the evidence meets the relatively lowthreshold required for corroboration (see Matter of Christina F., 74 NY2d 532, 536[1989]; Matter of Kimberly Z. [JasonZ.], 88 AD3d 1181, 1182 [2011]; Matter of Caitlyn U., 46 AD3d 1144, 1145-1146 [2007]).
Petitioner established that respondent pleaded guilty to the crime of gross sexual misconductof his biological daughter in Maine. Contrary to respondent's claim, this proof that respondentabused his biological daughter qualifies as evidence corroborating Olivia's out-of-courtstatements (see Family Ct Act § 1046 [a] [i], [vi]; Matter of Nicole V., 71NY2d 112, 118 [1987]). Such evidence of respondent's prior abuse of his own daughter and thetestimony of the caseworker and interviewer concerning Olivia's convincing demeanor whenmaking the out-of-court statements, as well as the significant detail and description of thesurrounding circumstances that the child related, when viewed in a light most favorable topetitioner, supports Family Court's determination that there was sufficient corroboration here(see Matter of Joshua UU. [Jessica XX.—Eugene LL.], 81 AD3d at 1098;Matter of Melissa I., 256 AD2d 671, 673 [1998]; Matter of Anita U., 185 AD2d378, 380 [1992]).
Likewise, we find no basis to disturb the determination that the mother neglected the childrenby failing to protect them from respondent (see Matter of Kimberly Z. [Jason Z.], 88AD3d at 1185; Matter of Telsa Z.[Denise Z.], 81 AD3d 1130, 1132 [2011]). Family Court discredited the mother'stestimony that she was unaware that respondent had been arraigned on the pending charge inMaine and we defer to that credibility determination (see Matter of Joseph RR. [Lynn TT.], 86 AD3d 723, 725 [2011]).We have considered the mother's remaining contentions and find them to be unavailing.
Spain, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that respondent Scott E.'sappeal from the order entered October 13, 2010 is dismissed, without costs. Ordered that theorders entered March 16, 2011 are affirmed, without costs.