In re Telsa Z.

• Decision Date: 11 March 2010
• Citation: 71 A.D.3d 1246,897 N.Y.S.2d 281
• Parties: In the Matter of TELSA Z. and Another, Alleged to be Abused and Neglected Children. Clinton County Department of Social Services, Respondent; Rickey Z., Appellant. Denise Z., Appellant.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 281 71 A.D.3d 1246 In the Matter of TELSA Z. and Another, Alleged to be Abused and Neglected Children. Clinton County Department of Social Services, Respondent; Rickey Z., Appellant. Denise Z., Appellant. Supreme Court, Appellate Division, Third Department, New York. March 11, 2010.

Marsha K. Purdue, Glens Falls, for Rickey Z., appellant.

Marcel J. Lajoy, Albany, for Denise Z., appellant.

Michael J. Hartnett, Clinton County Department of Social Services, Plattsburgh, for respondent.

Cheryl Maxwell, Law Guardian, Plattsburgh.

Before: MERCURE, J.P., SPAIN, MALONE JR., STEIN and McCARTHY, JJ.

SPAIN, J.

Appeals (1) from two orders of the Family Court of Clinton County (Lawliss, J.), entered February 11, 2009 and March 17, 2009, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate the subject children to be abused and neglected, (2) from an order of said court, entered March 17, 2009, which issued an order of protection against respondent.

Respondent and Denise Z. (hereinafter the mother) are the parents of two daughters, Telsa Z. (born in 2000) and Destiney Z. (born in 2001). The mother also has three older daughters from previous relationships (born between 1989 and 1995). In October 2008, petitioner filed an abuse and neglect petition solely against respondent, alleging that he had repeatedly sexually abused Telsa (hereinafter the child), then eight years old, and that he had derivatively abused and neglected her younger sister. A temporary order of protection was issued against respondent directing him to stay away from the children, who remained at home with the mother. The mother was apparently notified of the proceeding pursuant to Family Ct. Act § 1035(c) and (d). In the petition and throughout the record, the mother is referred to and treated as a "non-respondent parent" ( see Family Ct. Act § 1035[d] ).

The sexual abuse allegations against respondent were based primarily on the child's out-of-court statements to four adults: a teacher, a teacher's aide and a school psychologist at the child's special education program, and a Child Protective Services caseworker. Their testimony at the fact-finding hearing recounted the child reporting that respondent had repeatedly sexually abused her and their observations that, during the relevant period of time, she had difficulty with social interaction, appeared to be depressed, isolated and withdrawn, and often complained that her legs, thighs and "private parts" hurt; the child also reported that the mother had "peeked" into respondent's bedroom, saw what he was doing to the child and then left and pretended that it did not happen. The child's teacher testified that the child had written a note on a page in her notebook-on which she had also drawn a picture-describing respondent's abuse, and a copy of that page was received in evidence. The child also reported that the mother told her that,because of what had happened, she was bad and that both parents told her that she would go to jail if she said anything about the abuse.

Petitioner also called the child as a witness. After questioning the child, Family Court ruled that she was incapable of taking an oath but permitted her to give unsworn testimony in camera.¹ While respondent offered no evidence, the Law Guardian called him as a witness and he denied each of the allegations of sexual abuse, claiming that the child's reports of sexual abuse were motivated by anger at his refusal to get her a horse. Significantly,the record is clear that the mother and her attorney were present, but sat passively through the entire fact-finding hearing; the mother did not testify and her attorney presented no witnesses, conducted no cross-examination, made no motions or objections and gave no closing argument. In the closing arguments, respondent's attorney questioned why respondent was the only parent charged.

In its fact-finding order entered February 11, 2009, Family Court found that the child's unsworn testimony was reliable and sufficiently corroborated her out-of-court statements, noting that, while there were some inconsistencies in her testimony, she remained consistent regarding her allegations against respondent. The court concluded that respondent had sexually abused and neglected the child and had derivatively abused and neglected the younger sister. No findings were made with respect to the mother.

At the dispositional hearing, Family Court, on its own initiative and without objection, swore the mother in as a witness and questioned her in detail about her history, including the neglect and loss of custody of her three older children, an issue first raised at fact-finding; the mother's past behavior then became the main focus at the hearing.² The Law Guardian elicited testimony, on cross-examination of the caseworker, regarding the child's reports that the mother looked in during respondent's abuse, ignored it, and blamed the child. In addition, the caseworker testified from her case notes that the mother admitted that she sometimes observed the child going into respondent's bedroom and that the mother believed the child's allegations against respondent.

The mother testified and denied any knowledge of respondent's abuse of the child. In the end, the Law Guardian advocated that the children should be removed from the mother's home and have only supervised visits with her. Respondent argued that the children should remain with the mother and that he be permitted limited visitation. Petitioner took the position that the children were bonded to the mother and should remain at home with her and that the temporary orders of protection against respondent be made permanent.

In its dispositional order entered March 17, 2009, Family Court first concluded that respondent abused and neglected the children. It then found that the mother failed to protect them and held-based upon the proof at the dispositional hearing-that their best interests required that they be removed from the home of their mother and placed with petitioner; all visitation with the mother was precluded for three months and then supervised visitation with the mother would be allowed, initially biweekly; respondent was denied all visitation. Final orders of protection were entered the same day against respondent and the mother. On appeal, respondent challenges the findings of abuse and neglect against him, and both parents challenge the order of disposition.³

In a Family Ct. Act article 10 proceeding, petitioner bears the burden of proving abuse and/or neglect by a preponderance of the evidence ( see Family Ct. Act § 1046[b]; Matter of Richard SS., 29 A.D.3d 1118, 1121, 815 N.Y.S.2d 282 [2005] ). 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 Kole HH., 61 A.D.3d 1049, 1051, 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]; see Family Ct. Act § 1046[a] [vi]; Matter of Ian H., 42 A.D.3d 701, 702, 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] ). "[A] relatively low degree of corroborative evidence is sufficient in abuse proceedings" ( Matter of Joshua QQ., 290 A.D.2d 842, 843, 736 N.Y.S.2d 515 [2002]; see Matter of Kayla N., 41 A.D.3d 920, 922, 837 N.Y.S.2d 424 [2007] ) and, while mere repetition is not sufficient, "some corroboration can be provided through the consistencyof a child's statements" ( Matter of Richard SS., 29 A.D.3d at 1121, 815 N.Y.S.2d 282; see Matter of Kole HH., 61 A.D.3d at 1052, 876 N.Y.S.2d 199; Matter of Kayla F., 39 A.D.3d 983, 984, 833 N.Y.S.2d 742 [2007] ). A child's unsworn testimony may provide such corroboration ( see Matter of Christina F., 74 N.Y.2d 532, 536-537, 549 N.Y.S.2d 643, 548 N.E.2d 1294 [1989] ).

Family Court is accorded " 'considerable discretion to decide whether the child's out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding of abuse' " ( Matter of Caitlyn U., 46 A.D.3d 1144, 1145-1146, 847 N.Y.S.2d 753 [2007], lv. denied 10 N.Y.3d 710, 859 N.Y.S.2d 395, 889 N.E.2d 82 [2008], quoting Matter of Christina F., 74 N.Y.2d at 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294; see Matter of Felicia N., 44 A.D.3d 1188, 1188, 843 N.Y.S.2d 859 [2007] ). Moreover, Family Court's credibility determinations are accorded deference ( see Matter of Chaquill R., 55 A.D.3d 975, 977, 865 N.Y.S.2d 716 [2008], lv. denied 11 N.Y.3d 715, 873 N.Y.S.2d 532, 901 N.E.2d 1286 [2009]; Matter of Randy V., 13 A.D.3d 920, 921, 786 N.Y.S.2d 823 [2004] ).

Here, Family Court rightly determined that the child's allegations against respondent were sufficiently corroborated and the record supports the findings of abuse and neglect against him ( see Matter of Caitlyn U., 46 A.D.3d at 1145-1146, 847 N.Y.S.2d 753). The child's statements to the adults were essentially consistent and were corroborated by testimony that, in the period before her disclosure, she began exhibiting withdrawn, distressed behavior and was complaining of pain on her legs and thighs, as well by the drawing and remarks in her notebook. Her allegations were also corroborated by her unsworn testimony ( see Matter of Kole HH., 61 A.D.3d at 1052, 876 N.Y.S.2d 199; Matter of Brandi U., 47 A.D.3d 1103, 1104, 849 N.Y.S.2d 710 [2008] ). Thus, we find that there was sufficient evidence to support the determination that respondent neglected and abused the child. Further, a finding of derivative neglect was warranted as to the younger sister where, as here, "the evidence as to the child found to be neglected demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child inrespondent's care" ...