| Matter of Lori DD. v Shawn EE. |
| 2012 NY Slip Op 08198 [100 AD3d 1305] |
| November 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Lori DD., Respondent, v Shawn EE.,Appellant. (And Another Related Proceeding.) |
—[*1] Towne, Ryan & Partners, PC, Albany (Francine R. Vero of counsel), for respondent. Diane M. Herrmann, Schenectady, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Schenectady County (Powers, J.),entered December 22, 2011, 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 parents of achild (born in 1997). The parties entered into a court-ordered stipulation in October 2000providing for joint custody, with primary physical custody with the mother and alternate weekendvisitation for the father. In August 2009, the mother commenced the first of these proceedingsseeking modification on the ground that the father had sexually abused the child. TheSchenectady County Department of Social Services thereafter commenced a proceeding againstthe father pursuant to Family Ct Act article 10 on the same grounds. All parties stipulated todetermine the custody proceeding prior to the child protective proceeding, with the Departmentagreeing to withdraw its petition if the mother received custody and otherwise reserving itsrights. While the matter was pending, the mother further requested permission to relocate withthe child to Panama. Following a fact-finding hearing, Family Court, among other things,awarded sole custody to the mother, granted her request to relocate, and dismissed the childprotective proceeding. The father appeals, and we affirm.[*2]
The mother's allegation that the father sexually abusedthe child on multiple occasions, if substantiated, would clearly constitute changed circumstanceswarranting modification of the existing custody order (see Matter of Knight v Knight, 92 AD3d 1090, 1091-1092 [2012]).Thus, as Family Court held, the critical determination here was whether there was sufficientevidence to establish that these allegations were true (see Matter of Kimberly CC. v Gerry CC., 86 AD3d 728, 729[2011]).
The mother testified that, beginning in 2008, the child made numerous statements describingacts of sexual abuse by the father that had allegedly occurred over an extended period of time. Inlight of this claimed abuse, the evidentiary standards established in Family Ct Act article 10 wereproperly applied (see Matter of Rawichv Amanda K., 90 AD3d 1085, 1086-1087 [2011]), and the child's out-of-courtstatements were thus admissible in this Family Ct Act article 6 proceeding if sufficientlycorroborated (see Family Ct Act § 1046 [a] [vi]; Matter of Bartlett v Jackson, 47 AD3d1076, 1077 [2008], lv denied 10 NY3d 707 [2008]). A "relatively low" degree ofcorroboration is sufficient (Matter of Kimberly CC. v Gerry CC., 86 AD3d at 730), andthe requirement may be satisfied by "[a]ny other evidence tending to support the reliability of the[child's] statements" (Family Ct Act § 1046 [a] [vi]). Here, the mother described dramaticchanges in the child's behavior, such as panic attacks, cutting herself, and inability to sleep.Further, expert testimony was offered by a therapist who saw the child on a weekly basis for twoyears. This expert testified that the child showed symptoms typical of children who had beensexually abused, such as anxiety, guilt, self-harming behaviors, suicidal thoughts and knowledgeof sex beyond what would normally be expected for her age. The therapist described the child'sambivalence about the father, in that she loved and missed him and, at the same time, stronglyfeared him and worried that he would "come after her again," and testified that such mixedemotions were common in children who were abused by a relative or close acquaintance. Thetherapist further testified that she knew of no evidence that the mother had influenced the child tofabricate her claims. Family Court found the therapist's testimony "highly credible andpersuasive," and we fully agree that this testimony supplied the necessary corroboration for thehearsay testimony describing the child's statements (see Matter of Rawich v Amanda K.,90 AD3d at 1087; Matter of DaphneOO. v Frederick QQ., 88 AD3d 1167, 1168 [2011]).
Testifying as an adverse witness, the father denied the claimed sexual abuse, deniedobserving any resulting behavioral changes, and denied other allegations of physical abuse andneglect, including striking the child with a belt, using drugs, and perpetrating acts of domesticabuse in her presence. Notably, at the time of this testimony, the father was serving a three-yearprison term for domestic abuse arising out of an assault on his girlfriend, and he admitted toprevious convictions for other offenses, including domestic abuse and drug possession.According deference to Family Court's credibility assessments, there is a sound and substantialbasis for the best interest determination and the court's finding that further contact with the fatherwould be detrimental to the child's welfare (see Matter of Ildefonso v Brooker, 94 AD3d 1344, 1345-1346[2012]; Matter of Leonard vPasternack-Walton, 80 AD3d 1081, 1082 [2011]; Matter of Abare v St. Louis, 51 AD3d 1069, 1070-1071 [2008]).
Family Court's determination that the child's bond with the father had been obliterated by hisharmful conduct and that her only healthy relationship was with her mother strongly supports theproposed relocation, even to a distant locale for an indefinite period. The mother's testimonyaddressed multiple additional factors revealing that the child's best interests would be promotedby the move—she described her anticipated employment, the child's anticipated schooling,the availability of counseling and medical treatment, the child's familiarity with the [*3]social environment and her opportunities to interact with friendsand extended family following the relocation (see Matter of Tropea v Tropea, 87 NY2d727, 740-741 [1996]; compare Matter ofAdams v Bracci, 91 AD3d 1046, 1048-1049 [2012], lv denied 18 NY3d 809[2012]; Matter of Herman vVillafane, 9 AD3d 525, 527-528 [2004]). Accordingly, we will not disturb thedetermination allowing the proposed relocation.
Peters, P.J., Rose, Spain and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.