Esther CC, Matter of
| Decision Date | 17 June 1993 |
| Citation | 194 A.D.2d 949,598 N.Y.S.2d 871 |
| Parties | In the Matter of ESTHER "CC", 1 Alleged to be an Abused Child. Sarah E. Combs, as Deputy Commissioner of the Warren County Department of Social Services, Respondent; Joseph "CC", 1 Appellant. |
| Court | New York Supreme Court — Appellate Division |
McPhillips, Fitzgerald & Meyer (William White, of counsel), Glens Falls, for appellant.
H. Bartlett McGee Jr., Lake George, for respondent.
Before WEISS, P.J., and LEVINE, MERCURE, MAHONEY and CASEY, JJ.
Appeals (1) from an order of the Family Court of Warren County (Austin, J.), entered February 5, 1992, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 10, to adjudicate respondent's child to be abused, and (2) from an order of said court, entered February 5, 1992, which prohibits respondent from having any contact with said child.
Respondent was found by Family Court to have sexually abused his daughter, Esther "CC", born in 1982. Esther first disclosed this to her mother in June 1989, complaining of pain in her vagina and rectum and describing that respondent had penetrated her there with his penis. Some two weeks later, her mother brought Esther to Susan McPhillips, a psychiatrist, to whom Esther repeated her story of sexual abuse by respondent. Susan McPhillips had the child draw a picture of what happened and describe what was depicted. She also performed a formal mental status examination on Esther. She then referred Esther to John McPhillips, a pediatrician, to perform a physical examination. John McPhillips found that Esther's hymen was perforated, with multiple tears, including injury to the posterior wall of the hymen, all of which suggested penile penetration consistent with Esther's narration. After a second interview with Esther, Susan McPhillips reported the case to the local child protective service as an incident of child sexual abuse.
Petitioner commenced this Family Court Act article 10 proceeding in July 1989, alleging that Esther was sexually abused by respondent and was neglected by her mother, who delayed for over a month to report the abuse to the proper authorities. At the conclusion of the fact-finding hearing, Family Court found that Esther was sexually abused by respondent and that the mother's delay in notifying the authorities did not constitute neglect. After a dispositional hearing, Family Court issued a dispositional order and an order of protection prohibiting respondent from having any contact with Esther until her 18th birthday. Respondent appeals.
Respondent's first point on appeal is that there was insufficient credible evidence adduced at the fact-finding hearing to sustain Family Court's finding that respondent had sexually abused Esther. We disagree. Esther's out-of-court statements of respondent's sexual abuse, admissible under Family Court Act § 1046(a)(vi), made to her mother and various physicians and other professionals involved in the case, were consistent in all material respects. She also gave consistent in camera unsworn testimony. Susan McPhillips and Pamela Langelier, a clinical psychologist and nationally recognized expert on validating techniques for child sexual abuse complaints, both opined that Esther had not been programmed by her mother into making a false accusation and that her statements were valid. Additionally, two pediatricians and one gynecologist testified that the nature and extent of the injuries to Esther's hymen found upon their examinations could not have resulted from any normal activity of a child, were caused by penetration by a penis or a penis-sized and shaped object, and were completely consistent with her statements of being sexually abused by respondent. The validation expert testimony alone was sufficient corroboration of Esther's hearsay statements to sustain Family Court's finding of sexual abuse by respondent (see, Matter of Nichole V., 71 N.Y.2d 112, 121, 524 N.Y.S.2d 19, 518 N.E.2d 914). The findings and opinions of the physicians who testified concerning their physical examinations of Esther also constituted persuasive corroborating evidence (see, Matter of Estina W. [Leon H.], 181 A.D.2d 554, 581 N.Y.S.2d 320; Matter of Laura W. [Bob G.], 160 A.D.2d...
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Daniella HH, Matter of
... ... Esther CC. [Joseph CC.], 194 A.D.2d 949, 598 N.Y.S.2d 871). Here, the limited testimony elicited at the hearing regarding the alleged neglect of Daniella was not consistent and Family Court had a superior vantage point from which to determine the credibility of the witnesses. In our view, the record ... ...
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Shaun X, Matter of
... ... Respondent testified on his own behalf and denied the allegations set forth in the petition. Affording Family Court the deference it is entitled to in its assessment of the credibility of witnesses (see, Matter of Esther" CC. [Joseph CC.], 194 A.D.2d 949, 951, 598 N.Y.S.2d 871), we will not disturb a finding of abuse and neglect when, as here, it is fully supported by a preponderance of the evidence (see, id., at 951, 598 N.Y.S.2d 871; Matter of Scott X. [Rose X.], 184 A.D.2d 866, 867, 585 N.Y.S.2d 115) ... \xC2" ... ...
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David DD, Matter of
... ... To the extent that respondent denied the allegations set forth in the amended petition, this merely presented a credibility issue for Family Court to resolve. We see no basis in the record to disturb Family Court's determination (see generally, Matter of Esther CC. [Joseph CC.], 194 A.D.2d 949, 951, 598 N.Y.S.2d 871) ... Respondent finally contends that Family Court erred in considering the foster mother's testimony regarding instances where the children were seen acting out sexual behavior without accompanying expert testimony to ... ...
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Kathleen OO, Matter of
... ... Credibility issues, as well as the weight to be given the evidence presented, are primarily determined by the trier of fact (see, Matter of Joey T., 185 A.D.2d 851, 587 N.Y.S.2d 356; see also, Matter of Esther CC. [Joseph CC.], 194 A.D.2d 949, 951, 598 N.Y.S.2d 871). Family Court's determination is entitled to great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, Matter of Commissioner of Social Servs. of City of N.Y. [Jannie S.--Rafael R.], supra, at 529, ... ...