In re Justin CC.

• Decision Date: 21 October 2010
• Citation: 909 N.Y.S.2d 771,77 A.D.3d 1056
• Parties: In the Matter of JUSTIN CC. and Others, Alleged to be Abused and Neglected Children. Chemung County Department of Social Services, Respondent; Tina CC. et al., Appellants. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 771

77 A.D.3d 1056

In the Matter of JUSTIN CC. and Others, Alleged to be Abused and Neglected Children. Chemung County Department of Social Services, Respondent; Tina CC. et al., Appellants. (And Another Related Proceeding.)

Supreme Court, Appellate Division, Third Department, New York.

Oct. 21, 2010.

John J. Raspante, New Hartford, for Tina CC., appellant.

Kelly M. Corbett, Fayetteville, for George CC., appellant.

David Kagle, Chemung County Department of Law, Elmira, for respondent.

Before: MERCURE, J.P., PETERS, SPAIN, ROSE and KAVANAGH, JJ.

PETERS, J.

Appeals from two orders of the Family Court of Chemung County (Hayden, J.), entered January 5, 2009 and April 16, 2009, which granted petitioner's applications, in two proceedings pursuant to Family Ct. Act article 10, to adjudicate respondents' children to be abused and neglected.

Respondents George CC. (hereinafter the father) and Tina CC. (hereinafter the mother) are the parents of three sons (born in 1996, 1999 and 2001). The mother also has a daughter from a prior relationship (born in 1992). On November 28, 2006, the daughter left a note with her school guidance counselor requesting that she be removed from her home. Upon meeting with the guidance counselor, the daughter reported that her parents forced her to stand in the corner earlier that morning while they slapped her and pulled her hair, and that she was regularly subjected to physical abuse by them, including being beaten with a belt on nearly a daily basis. That same day, the daughter met with one of petitioner's caseworkers and reiterated the events that had transpired that morning. She also disclosed, among other things, being frequently whipped with a belt with her pants and underwear down and being made to "pick cherries," a painful military exercise wherein she was made to stand with her arms outstretched and simulate picking cherries off of a wall. Later that day, with the mother's consent, the daughter was placed into foster care.

Petitioner subsequently charged respondents with neglect of the children. In April 2007, the daughter was freed for adoption upon the mother's surrender of her parental rights. Thereafter, in the summer of 2007, the daughter revealed toher foster mother that the father had sexual intercourse with her on at least 20 occasions between the summer of 2006 and the time she was placed in foster care. During an interview with one of petitioner's caseworkers and a police investigator, and in a later written statement, the daughter detailed the father's sexual abuse of her and reiterated when, where and how he had forcedher to have sexual intercourse. Following this investigation, the petitions were amended to allege that the father had sexually abused the daughter and derivatively abused his sons.

A fact-finding hearing ensued, during the course of which the daughter provided sworn in-court testimony outside the presence of respondents, but with all counsel present and afforded a full opportunity to cross-examine her. Following the hearing, Family Court found that the father abused the daughter and derivatively abused the sons, and that both the mother and the father neglected all four children. At the dispositional hearing, respondents each stipulated to the terms of a dispositional order and the father consented to the entry of an order of protection. Respondents appeal from the order sustaining the petitions,¹ with the father also appealing the dispositional order applicable to him.

The father contends that the findings of neglect and abuse against him were not established by a preponderance of the evidence, specifically claiming that Family Court should not have credited the daughter's testimony and that the daughter's out-of-court statements were not sufficiently corroborated. We disagree. "A child's previous out-of-court allegations of abuse or neglect are admissible but, to support a finding of abuse or neglect, must be corroborated by other evidence introduced during the proceeding that tends to establish their reliability" ( Matter of Telsa Z. [Rickey Z.-Denise Z.], 71 A.D.3d 1246, 1249, 897 N.Y.S.2d 281 [2010] [internal quotation marks and citations omitted]; see Family Ct. Act § 1046[a][vi]; Matter of Rebecca KK., 61 A.D.3d 1035, 1036, 876 N.Y.S.2d 217 [2009] ). A relatively low degree of corroborative evidence is sufficient to meet this threshold ( see Matter of Kole HH., 61 A.D.3d 1049, 1051-1052, 876 N.Y.S.2d 199 [2009], lv. dismissed 12 N.Y.3d 898, 884 N.Y.S.2d 679, 912 N.E.2d 1058 [2009]; Matter of Caitlyn U., 46 A.D.3d 1144, 1146, 847 N.Y.S.2d 753 [2007] ), and the reliability of the corroboration, as well as issues of credibility, are matters entrusted to the sound discretion of Family Court and will not be disturbed unless clearly unsupported by the record ( see Matter of Brandi U., 47 A.D.3d 1103, 1104, 849 N.Y.S.2d 710 [2008]; Matter of Kayla N., 41 A.D.3d 920, 922, 837 N.Y.S.2d 424 [2007]; Matter of Addie F., 22 A.D.3d 986, 987, 802 N.Y.S.2d 791 [2005] ).

Here, the testimony of the third parties as to the hearsay statements made by the daughter regarding the father's sexual and physical abuse were sufficiently corroborated by the daughter's detailed in-court testimony ( see Matter of Christina F., 74 N.Y.2d 532, 536-537, 549 N.Y.S.2d 643, 548 N.E.2d 1294 [1989]; Matter of Aaliyah B. [Clarence B.], 68 A.D.3d 1483, 1484, 892 N.Y.S.2d 242 [2009]; Matter of Brandi U., 47 A.D.3d at 1104, 849 N.Y.S.2d 710), which was consistent in all material respects with her prior statements. Her out-of-court statements regarding the father's sexual abuse were further corroborated by her written statement to police ( see Matter of Sabrina M., 6 A.D.3d 759, 761, 775 N.Y.S.2d 96 [2004] ). Family Court found the daughter's testimony to be "fully credible," and concluded that the father's "string of denials" completely undermined his credibility. According due deference to the court's credibility assessments and factual findings, we conclude that its determination that the daughter was abused and neglected by the father is soundly supported by a preponderance of evidence in the record and will not be disturbed ( see Matter of Brooke KK. [Paul KK.], 69 A.D.3d 1059, 1061, 892 N.Y.S.2d 671 [2010]; Matter of Richard SS., 55 A.D.3d 1001, 1003-1004, 871 N.Y.S.2d 383 [2008]; Matter of Senator NN., 11 A.D.3d 771, 772, 783 N.Y.S.2d 105 [2004] ). Furthermore, a finding of derivative abuse and neglect was warranted as to his sons inasmuch as the father's repeated sexual and physical abuse of the daughter "demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [his] care" ( Matter of Ian H., 42 A.D.3d 701, 704, 840 N.Y.S.2d 202 [2007], lv. denied 9 N.Y.3d 814, 848 N.Y.S.2d 25, 878 N.E.2d 609 [2007] [internal quotation marks and citations omitted]; see Matter of Nathaniel TT., 265 A.D.2d 611, 614, 696 N.Y.S.2d 274 [1999], lv. denied 94 N.Y.2d 757, 703 N.Y.S.2d 74, 724 N.E.2d 770 [1999]; Matter of Amanda LL., 195 A.D.2d 708, 709, 600 N.Y.S.2d 298 [1993] ).

The mother similarly asserts that the daughter's out-of-court statements were insufficiently corroborated to support a finding that she neglected her children. Again, we disagree. The daughter's out-of-court statements regarding her mother's use of inappropriate physical punishment were corroborated by her sworn in-court testimony, as well as the mother's testimony that she disciplined the daughter by spanking her with a belt, that she was present while the father did so and that "cherry picking" was used as a form of punishment. The mother's commission of these acts of excessive corporal punishment, and her failure to intervene and protect the daughter from the father's physical abuse, furnishes ample support for Family Court's determination that she neglected the daughter ( see Matter of Chelsea BB., 34 A.D.3d 1085, 1087, 825 N.Y.S.2d 551 [2006], lv. denied 8 N.Y.3d 806, 832 N.Y.S.2d 488, 864 N.E.2d 618 [2007]; Matter of Kim HH., 239 A.D.2d 717, 719, 658 N.Y.S.2d 480 [1997...