In the Matter of Richard Ss.

• Decision Date: 11 May 2006
• Docket Number: 99142.
• Citation: 29 A.D.3d 1118,815 N.Y.S.2d 282,2006 NY Slip Op 03669
• Parties: In the Matter of RICHARD SS., a Child Alleged to be Abused and Neglected. SCHENECTADY COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant; TAMMY TT., Respondent. (Proceeding No. 1.) In the Matter of RICHARD SS., a Child Alleged to be Abused and Neglected. SCHENECTADY COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant; CHARLES TT., Respondent. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

29 A.D.3d 1118

815 N.Y.S.2d 282

2006 NY Slip Op 03669

In the Matter of RICHARD SS., a Child Alleged to be Abused and Neglected SCHENECTADY COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant TAMMY TT., Respondent. (Proceeding No. 1.) In the Matter of RICHARD SS., a Child Alleged to be Abused and Neglected SCHENECTADY COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant; CHARLES TT., Respondent. (Proceeding No. 2.)

99142.

Appellate Division of the Supreme Court of the State of New York, Third Department.

May 11, 2006.

Appeals from two orders of the Family Court of Schenectady County (Powers, J.), entered May 6, 2005, which dismissed petitioners' applications, in two proceedings pursuant to Family Ct Act article 10, to adjudicate the subject child to be abused and/or neglected by respondents.

Spain, J.

Petitioner commenced these Family Ct Act article 10 proceedings in July 2004 by separate petitions against respondent Tammy TT. and her husband, respondent Charles TT.; respondents were the former foster parents of the subject child (born in 1987). The petition against Tammy alleged that she had engaged in sexual acts on an ongoing basis with the child, who had been placed in respondents' home as a foster child; he was 16 years of age during the period in which the sexual activity occurred. The petition against Charles alleged that he was aware of his wife's behavior and knowingly allowed it to continue. Following petitioner's presentation of proof at a hearing in which the child did not testify, Family Court granted respondents' motion—without seeking a position from the child's Law Guardian—to dismiss both petitions, finding that the child's out of court statements had not been sufficiently corroborated. Petitioner appeals.

At the fact-finding hearing, the following witnesses testified: a Child Protective Services (hereinafter CPS) caseworker from Saratoga County who interviewed the child as part of her hotline investigation; the foster mother in whose home—in the Town of Waterford, Saratoga County—the child resided from early March 2004 until late June 2004; the Waterford foster mother's adult daughter who made the hotline report after the child disclosed to her his sexual activities with Tammy; a Schenectady County CPS caseworker who interviewed the child with the City of Schenectady police on July 2, 2004; and Angela Baris, a validation expert employed by Northeast Parent and Child Society (hereinafter Northeast), who also interviewed the child on July 2, 2004. Two written statements signed by the child and two reports based on interviews with the child were received in evidence.

On respondents' motion to dismiss at the close of petitioner's case, evidence presented "must be viewed in the light most favorable to the petitioner" (Matter of Evelyn X., 290 AD2d 817, 819 [2002], lv dismissed 98 NY2d 666 [2002]). Here, the proof establishes that, in early September 2003, the child was placed in respondents' home. In February 2004, because of "behavioral problems," the child was moved out of respondents' home into a group home in Schenectady County run by Northeast. The following month, the child was moved out of the group home but was not returned to respondents. Instead, he was placed in the home of the Waterford foster mother and her husband. Three months later, the adult daughter of the Waterford foster mother—who was temporarily living in her parents' home with her husband and baby—made a report to the Statewide Central Register of Child Abuse and Maltreatment that the child had revealed to her that he and Tammy had engaged in sexual activities on an ongoing basis from shortly after he was placed in her home in September 2003 to June 2004. The Saratoga County CPS commenced an investigation on June 14, 2004. On June 24, 2004, after Tammy had made phone contact with the child, temporary orders of protection were issued ex parte in Family Court, Schenectady County, directing—in separate orders—that respondents refrain from any contact with the child.

The record contains a typed statement given by the child to a New York State police investigator and signed by the child under penalty of perjury on June 15, 2004, in which he describes an incident in September 2003—when he was living with respondents—where, while at the movies, Tammy rubbed his leg and penis; afterward, they went back to the house where, after the other children went to bed, he and Tammy watched a movie in her bedroom and engaged in sexual intercourse and oral sex. He states that they engaged in intercourse "a couple times a week" until he moved out in early February 2004 and that their sexual relationship continued while he was at the group home. Following his move to the Waterford foster home, he and Tammy communicated secretly after Tammy told him that she was told not to contact him. He states that he used pay phones and sent messages to her through his sister and that Tammy continued to call him at his Waterford foster home. Most of the time she would pick him up at the group home or at school, go to a secluded location and have sex with him in her tinted-windowed vehicle. According to the child, the last time he saw Tammy was in early June 2004, when she picked him up at school and took him to a parking garage where they had intercourse in her vehicle. Further, he states that she told him that she had a "tubular pregnancy" and said that it was probably his child.

The record also contains a five-page sworn affidavit given by the child to a Schenectady police detective on July 2, 2004, wherein he describes Tammy's pursuit of him and sexual encounters in detail, stating that, when he lived with respondents, he and Tammy would frequently have intercourse throughout the house—usually when Charles was not home— and in her vehicle. He also states that this sexual activity continued after he was placed in the group home in early February 2004, that Tammy often phoned him twice a day and would make excuses to remove him from the group home or picked him up at school so they could have sex, and that they had engaged in oral sex while they were alone in the group home's family room. He further states that on what he believes was February 18, 2004, she took him from the group home to bring him to a scheduled dental appointment—which she then cancelled by phone—and, instead, took him to a mall where they watched a movie, had dinner and then engaged in sex in her vehicle before she returned him to the group home. He states that they engaged in sex 8 or 10 times during the period that he was at the group home. He observed that Tammy had a tattoo on her spine which was "diamond shape[d] with lines," and that she shaved her pubic area.

In these Family Ct Act article 10 proceedings, petitioner bore the burden of proving by a preponderance of the evidence that respondents abused or neglected the child (see Family Ct Act § 1046 [b] [i]). "Although a child's uncorroborated statement is insufficient [by itself] to support a factual finding of abuse or neglect, such a statement may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient in abuse proceedings" (Matter of Joshua QQ., 290 AD2d 842, 843 [2002] [citations omitted]). Upon our review of the record before us in the light most favorable to petitioner and exercising our own factual review power (see Matter of Anita U., 185 AD2d 378, 379 [1992]), we find that sufficient evidence was adduced on the record to meet the minimal level of corroboration necessary to support a factual finding of abuse and neglect as to Tammy and, thus, Family Court improperly dismissed that petition. However, we agree with the court that there is insufficient evidence in the record to support the petition against Charles.

While mere repetition of the accusations is insufficient (see Matter of Nicole V., 71 NY2d 112, 123 [1987]; Matter of Sasha R., 24 AD3d 902, 903 [2005]), some corroboration can be provided through the consistency of a child's statements (see Matter of Joshua QQ., supra at 843; Matter of Brandon UU., 193 AD2d 835, 837 [1993]). Here, the 16-year-old child gave— with few exceptions—consistent, lengthy and detailed accounts of various instances of clandestine sexual activity to several individuals, to the State Police and in his sworn affidavit to the Schenectady police (see Penal Law art 210).

Furthermore, the child's reports that after he left her home Tammy continued to pursue him through phone contact and by picking him up at school and at the group home are supported by the Waterford foster parents' phone records and school attendance records. The Waterford foster mother testified that she was a party to a safety plan aimed at preventing Tammy and the child from communicating. Her phone records and her testimony confirm that—unknown to the Waterford foster parents—calls were coming to their home phone from Tammy's home phone on a regular basis subsequent to the restriction on her communication with the child.¹ She also testified that she personally dropped off the child at school every day at about 7:30 A.M. and picked him up at the end of the day. The child's statement that Tammy would pick him up at school after he was dropped off by the Waterford foster mother, but before he was...