| Matter of Nicole G. (Louis G.) |
| 2013 NY Slip Op 02576 [105 AD3d 956] |
| April 17, 2013 |
| Appellate Division, Second Department |
| In the Matter of Nicole G., an Infant. Rockland CountyDepartment of Social Services, Appellant; Louis G., Respondent. (Proceeding No. 1.) Inthe Matter of Daniella G., an Infant. Rockland County Department of Social Services,Appellant; Louis G., Respondent. (Proceeding No. 2.) |
—[*1] Alvin L. Spitzer, Pearl River, N.Y., for respondent. Alexander Bursztein, New City, N.Y. (Francesca D.G. Eugene of counsel), for thechild Nicole G. Cassandra Bilotta, New City, N.Y., for the child Daniella G.
In two related child protective proceedings pursuant to Family Court Act article 10,the Rockland County Department of Social Services appeals from two orders of theFamily Court, Rockland County (Eisenpress, J.) (one as to each child), both dated July26, 2012, which, after a fact-finding hearing, denied the petitions and dismissed theproceedings.
Ordered that the orders are affirmed, without costs or disbursements.
A child's out-of-court statements may provide the basis for a finding of abuse if thestatements are sufficiently corroborated by other evidence tending to support thereliability of the child's statements (see Family Ct Act § 1046 [a] [vi];Matter of Nicole V., 71 NY2d 112, 123 [1987]; Matter of Tristan R., 63 AD3d1075, 1076 [2009]; Matterof Candace S., 38 AD3d 786, 788 [2007]). The Family Court has considerablediscretion in deciding whether a child's out-of-court statements alleging incidents ofabuse have been reliably corroborated (see Matter of Nicole V., 71 NY2d at 119;Matter of Tristan R., 63 AD3d at 1076; Matter of Candace S., 38 AD3dat 788), and its findings must be accorded deference on appeal where, as here, the FamilyCourt is primarily confronted with issues of credibility (see Matter of Jada K.E. [RichardD.E.], 96 AD3d 744, 745 [2012]; Matter of Jeshaun R. [Ean R.], 85 AD3d 798, 799 [2011];Matter of Candace S., 38 AD3d at 787; Matter of Sylvia J., 23 AD3d 560, 562 [2005]).[*2]
The Family Court properly found that the recordas a whole did not support a finding that the father abused Nicole G. and derivativelyneglected Daniella G. because Nicole G.'s out-of-court statements regarding variousincidents of the father's abusive conduct, made when she was 14 years old, wereinsufficiently corroborated by other evidence tending to support their reliability.
The witnesses' testimony at the fact-finding hearing established that Nicole G.divulged the same incidents to the social worker at her school, the investigatingdetective, and a child protective services caseworker, and a handwritten narrative byNicole G. which conformed to these disclosures was admitted into evidence. However,Nicole G. adamantly refused to testify at the fact-finding hearing, even after being servedwith a subpoena. Although the witnesses essentially cross-corroborated each other'stestimony, the petitioner was required to establish competent, nonhearsay, relevantevidence to reliably corroborate, or "validate," the out-of-court disclosures (seeMatter of Jada K.E. [Richard D.E.], 96 AD3d at 745; Matter of Linda K.,132 AD2d 149, 157 [1987]).
The petitioner's expert in child sexual abuse who interviewed Nicole G. was unableto provide the requisite corroborating evidence. The expert failed to identify thegenerally accepted professional protocols adhered to in the mental health and medicalcommunities and compare them to the protocol she employed. The expert opined thatNicole G.'s "behavior" and "affect" were consistent with that of a sexually abused child,but she did not render a professional opinion with a reasonable degree of certainty that itwas likely the abuse occurred.
As the allegations of abuse were not established by a preponderance of the evidence,the Family Court did not err in denying the petitions and dismissing the proceedings.Dillon, J.P., Balkin, Austin and Sgroi, JJ., concur.