Nicole S., Matter of

• Decision Date: 12 March 1984
• Citation: 123 Misc.2d 364,474 N.Y.S.2d 212
• Parties: In the Matter of NICOLE, Steven and Valenda S., a/k/a R., * Children under Eighteen Years of Age, Alleged to be Neglected by Gloria R. and Steven S.*, Respondents. Family Court, Monroe County
• Court: New York Family Court

Page 212

474 N.Y.S.2d 212

123 Misc.2d 364

In the Matter of NICOLE, Steven and Valenda S., a/k/a R. ^* Children under Eighteen Years of Age Alleged to be Neglected by Gloria R. and Steven S.*, Respondents Family Court, Monroe County.

March 12, 1984.

Paul N. Humphrey, Rochester, for petitioner, Monroe County Dept. of Social Services.

Karla Damico Wilsey, Rochester, for respondent, Steven S.

Edward J. Orlando, Rochester, Law Guardian.

DECISION

RAYMOND E. CORNELIUS, Judge.

A determination in this neglect proceeding, commenced pursuant to Article 10 of the Family Court Act, requires a decision concerning the extent to which a child's unsworn, out-of-court statement must be corroborated. Section 1046(a)(vi) provides an exception to the hearsay rule, in such proceedings, by permitting use of such a statement, but also provides "... that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect."

The Petition, insofar as it was supported by proof submitted on Petitioner's direct case, alleged, in essence, that the Respondent, STEVEN S., inflicted physical injury to one of the children, who was four years of age, on November 10, 1983. The case against the co-respondent, who is the mother of the children, had previously been adjourned in contemplation of dismissal, pursuant to the provisions of § 1039 of the Family Court Act. Proof submitted, as part of the Petitioner's direct case, consisted entirely of the testimony of two child protective caseworkers employed by the Department of Social Services.

One of the caseworkers testified that he had interviewed the four-year old child on November 12, 1983 at a hospital, and on that occasion, observed multiple welts and bruises about the body. According to this witness, the child had said, in substance, that her father had kicked her in the stomach and had caused injuries to her back by means of a belt. The other caseworker testified that she had interviewed the child on November 17, 1983, at which time, the child stated that her father had "jumped" on her and hit her with a belt, after he had "jumped" on her mother. This witness also testified to the observation of multiple marks about the body, and four photographs were received into evidence on the basis that they fairly and accurately depicted these marks. Thus, although there was independent evidence to establish that the child had sustained injuries, there was no other corroborative evidence. For example, the manner in which these injuries had been inflicted, as well as the identity of the perpetrator, was not established by any evidence independent from the child's out-of-court, unsworn statements.

The Respondent testified, on his own behalf, and essentially denied the allegations contained in the Petition. Specifically, he denied being present at the co-respondent's residence, where the children live, on the day of the alleged incident, and maintained that he had not been in the presence of the children for quite some time prior thereto. It would appear that the Respondent had been directed to stay away from the co-respondent based upon an order of protection, which had been granted earlier in 1983. Although Petitioner contended that the Respondent was present on the day, in question, there was no dispute concerning the fact that he did not reside with his family, and at least one of the caseworkers testified that the children had resided with their mother prior to November 12, 1983. Accordingly, § 1046(a)(ii), which permits "proof of injuries sustained by a child ... of such a nature as would ordinarily not be sustained ... except by reason of the acts or omissions of the parent or other person responsible for the care of such child ..." to be considered as prima facie evidence of abuse or neglect, should not be applicable to the father in this case.

The legal concept of corroboration is frequently used in criminal law, but the type of corroboration and extent of proof varies, depending upon the situation. For example a conviction may not be based solely upon evidence of a confession or admission without corroborative proof that the crime was, in fact, committed. Criminal Procedure Law § 60.50. Likewise, a conviction may not be based solely upon the testimony of an accomplice, but, in this situation, the corroborative evidence must tend to connect the defendant with the commission of the crime. Criminal Procedure Law § 60.22(1). In cases of sex offenses, based upon lack of consent resulting from age, mental defect, or mental incapacity, the testimony of the alleged victim is insufficient, without additional evidence establishing an attempt to engage in the sexual act and connecting the defendant with the commission of the offense. Penal Law § 130.16.

The statute, itself, is silent as to the form or extent of corroboration required. Frequently, the cases decided under § 1046(a)(vi), have involved questions concerning the form of the independent evidence, and, therefore, are not necessarily instructive as to the extent of the required corroboration. See e.g. Matter of Margaret W., 83 A.D.2d 557, 441 N.Y.S.2d 17 (2nd Dept., 1981). Matter of Hawkins, 76 Misc.2d 738, 351 N.Y.S.2d 574 (1974). At least one case discussed the different kinds of corroborative evidence produced at the fact finding hearing, but did not directly decide whether all or only some of the material allegations, contained in the petition, necessitated corroboration. See Matter of Rose B., 79 A.D.2d 1044, 435 N.Y.S.2d 185 (3rd Dept., 1981).

The unsworn testimony of a child is generally inadmissible in a civil action. Richardson on Evidence (Prints, 10 Ed.) § 391. Nevertheless, a Family Court Judge possesses the discretion to dispense with an oath for a minor, and, therefore, may receive unsworn testimony from such a witness. Family Court Act § 152(b). In criminal cases, the unsworn testimony of children, may be received, under certain circumstances. Criminal Procedure Law § 60.20. Nevertheless, a defendant may not be convicted of an offense solely upon such unsworn evidence, and this has been interpreted to require "... proof of circumstances legitimately tending to show the existence of the material facts of the crime." Criminal Procedure Law § 60.20, subd. 3, People v. Doellner, 87 A.D.2d 987, 450 N.Y.S.2d 114 (4th Dept., 1982), People v. St. John, 74 A.D.2d 85, 88, 426 N.Y.S.2d 863 (3rd Dept., 1980). Although § 152 of the Family Court Act does not address the issue of corroboration, the same standard used for § 60.20, subd. 3, of the Criminal Procedure Law has been applied, at least, to juvenile delinquency proceedings brought under the Family Court Act. See Matter of Steven B., 30 A.D.2d 442, 293 N.Y.S.2d 946 (1st Dept., 1968). The Court recognizes that the same kind of due process considerations, which are present in a criminal or juvenile delinquency case, are not...