Nicole V., Matter of

• Decision Date: 21 December 1987
• Citation: 518 N.E.2d 914,524 N.Y.S.2d 19,71 N.Y.2d 112
• Parties: , 518 N.E.2d 914 In the Matter of NICOLE V., a Child Alleged to be Abused. Lawrence V., Appellant. In the Matter of FRANCIS CHARLES W., JR., and Others. Mary Alice C., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 19

524 N.Y.S.2d 19

71 N.Y.2d 112, 518 N.E.2d 914

In the Matter of NICOLE V., a Child Alleged to be Abused.

Lawrence V., Appellant.

In the Matter of FRANCIS CHARLES W., JR., and Others. Mary

Alice C., Appellant.

Court of Appeals of New York.

Dec. 21, 1987.

Howard Jacobson, Mount Vernon, for appellant in the first above-entitled proceeding.

Peter L. Zimroth, Corp. Counsel (Elizabeth S. Natrella and Larry A. Sonnenshein, New York City, of counsel), for respondent

in the first above-entitled proceeding

Barbara H. Dildine and Lenore Gittis, Law Guardian, New York City, for Nicole V. in the first above-entitled proceeding.

James P. Maxwell, Hiscock Legal Aid, Syracuse, for appellant in the second above-entitled proceeding.

Robert J. Rossi, Co. Atty. (Anthony F. Copani, Syracuse, of counsel), for respondent in the second above-entitled proceeding.

Joseph J. Heath, Law Guardian, Syracuse, for Francis Charles W., Jr., and others in the second above-entitled proceeding.

OPINION OF THE COURT

SIMONS, Judge.

In these two child protective proceedings parents have been charged with sexually abusing their children. The proof of abuse rests principally on out-of-court statements of each child, evidence which is not legally sufficient to make a fact finding of child abuse unless corroborated in accordance with the requirements of section 1046(a)(vi) of the Family Court Act. ¹ The common issue presented is whether the corroborative evidence in each proceeding is sufficient under the statute.

In Matter of Nicole V., Bronx County Family Court made a fact finding that Nicole V.'s father, respondent Lawrence V., had sexually abused his daughter, then 3 1/2 years old, and prohibited him from visiting her without supervision for 18 months. On his appeal, respondent challenges the sufficiency of the evidence to support the finding of abuse, claiming the court erroneously received testimony from Nicole's therapist to "validate" and corroborate Nicole's out-of-court statements. In the second proceeding, Matter of Francis W. Jr., Samuel W. and David C., Onondaga County Family Court made a fact finding that a mother, respondent Mary Alice C., had sexually abused her three sons, then ages 11, 6 and 4 and removed the boys from her home for 18 months. Respondent challenges the sufficiency of the evidence to support the finding of abuse, claiming the court erroneously used the boys' out-of-court statements to corroborate each other. The orders were affirmed by the Appellate Divisions, 123 A.D.2d 97, 510 N.Y.S.2d 567 and 126 A.D.2d 936, 511 N.Y.S.2d 710, and we granted both respondents leave to appeal so that we could consider the types of evidence which may be used to corroborate a victim's hearsay statements in a child protective proceeding.

I

In recent years preventing the sexual abuse of children in family settings has become a major social and judicial concern (see generally, Besharov, Introductory Practice Commentary, McKinney's Cons.Laws of N.Y., Book 29A, Family Ct. Act art. 10, at 214-216). Such abuse is difficult to detect because the acts are predominantly nonviolent and usually occur in secret rendering the child the only witness. Moreover, once abuse is uncovered it is difficult to fix blame, not only because of the lack of evidence but also because of the reluctance or inability of victims to testify.

In an effort to alleviate these problems, the Legislature, in 1969, enacted the Child Protective Proceedings Act (Family Ct.Act art. 10). Its purpose is to protect children from injury or mistreatment while ensuring that the State's intervention on behalf of the child, against the wishes of a parent, comports with the parent's due process rights (Family Ct.Act § 1011). Child protective proceedings do not, of themselves, permanently sever parental rights or result in criminal sanctions. They are civil in nature and a finding of abuse or neglect need only be supported by a preponderance of the evidence (Family Ct.Act § 1046; Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038). Upon making such a finding Family Court may interfere with a parent's right to continue care and custody of a child for an initial 18-month period, subject to renewal, by putting into effect a wide variety of remedies which include various levels of supervision or removal of the child from the parent's home (see, Family Ct.Act §§ 1052, 1055 Matter of Tammie Z., 66 N.Y.2d 1, 4, 494 N.Y.S.2d 686, 484 N.E.2d 1038, supra ).

Because the accused parent is not subject to criminal sanctions in a child protective proceeding, the Legislature has provided that the usual rules of criminal evidence do not apply. Unsworn out-of-court statements of the victim may be received and, if properly corroborated, will support a finding of abuse or neglect (Family Ct.Act § 1046). Corroboration is not required because statements of children are generally unreliable but because the out-of-court statements are hearsay and the statute requires some further evidence to establish their reliability ( cf., Matter of Lydia K., 112 A.D.2d 306, 491 N.Y.S.2d 752, affd 67 N.Y.2d 681, 499 N.Y.S.2d 684, 490 N.E.2d 551 ).

Notwithstanding these provisions, and even though the Family Court Act stated that corroboration as defined in the Penal Law was not required (see, Family Ct.Act § 1012), many courts construed former section 1046 as requiring the same type of corroboration mandated by old provisions of the Penal Law requiring independent proof of the occurrence and identity of the offender in sex offenses when lack of consent was due to the victim's age (see, Penal Law former § 130.15, repealed L.1974, ch. 14, § 1). That standard made it extremely difficult to prove sexual abuse charges and thus, section 1046(a)(vi) was amended in 1985, not to change the standard of proof or the requirement of corroboration, but to make clear that the corroboration requirements of the criminal law are not applicable to article 10 civil proceedings (see, Sponsor Goodhue's Mem in support of legislation, L.1985, ch. 724, 1985 N.Y.Legis Ann, at 259; see also, Family Ct.Act § 1012).

As amended, section 1046(a)(vi) states a broad flexible rule providing that out-of-court statements may be corroborated by "other evidence tending to support" their reliability (L.1985, ch. 724). The amendment also provides that corroboration may include, but is not limited to, the types of evidence defined in other paragraphs of section 1046(a). Thus, corroboration may come in the form of proof that the parent abused one of his other children (subd. ); proof that the injuries were of such nature that they would not ordinarily be sustained but for the acts or omissions of the parent (subd. ); proof that the parent abuses drugs or alcohol to the extent that it would produce in him a state of stupor, unconsciousness, intoxication, hallucination, disorientation, incompetence or irrationality (subd. ); hospital or agency reports suggesting the parent committed the act or omission (subd. ); and evidence regarding the emotional health of the parent (subd. ). The statute provides that the evidence listed in these subdivisions may be sufficient, standing alone, to support a fact finding of abuse or neglect, but in those cases in which it is not, evidence of the types listed may provide corroboration for a child's out-of-court statements. The types of evidence listed in the section are only illustrative; additional kinds may also be deemed adequate on a case-by-case basis. Thus, courts have found sufficient corroboration in admissions by the parent, even though subsequently recanted (Matter of Margaret W., 83 A.D.2d 557, 441 N.Y.S.2d 17, lv. denied 54 N.Y.2d 609, 445 N.Y.S.2d 1028, 429 N.E.2d 835), evidence that the child was afflicted with a sexually transmitted disease ( Matter of Tara H., 129 Misc.2d 508, 494 N.Y.S.2d 953; see also, Matter of Jennifer Maria G., 112 A.D.2d 755, 492 N.Y.S.2d 254, appeal dismissed 66 N.Y.2d 1035, 499 N.Y.S.2d 1030, 489 N.E.2d 1303) or evidence that the child had become pregnant ( Matter of Joli M., 131 Misc.2d 1088, 502 N.Y.S.2d 653). Of course, Family Court Judges presented with the issue have 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.

II

Applying these concepts to the evidence presented in the two proceedings before us, we conclude the statutory requirements of corroboration are satisfied in both and the orders should, therefore, be affirmed.

A

In Matter of Nicole V., petitioner presented three witnesses at the fact-finding hearing: the child's mother, Linda V.; the child's caseworker from Special Services for Children, Ms. Champ; and the child's therapist, Ms. Lemp. Each witness testified to out-of-court hearsay statements made by Nicole describing incidents of sexual abuse by respondent in which he played "secret games" with her, involving hand to vagina contact, hand to chest contact, hand to anus contact, penis to vagina contact, and incidents in which he put "white paste" from his genital area in Nicole's mouth and "all over her".

There was also other evidence. Ms. Lemp testified that Nicole's behavior was symptomatic of a sexually abused child. Nicole's mother testified that Nicole developed vaginal rashes after weekend visits with respondent; that Nicole's behavior changed after weekend visits with respondent; and that, on one occasion after Nicole returned from a visit with respondent, the mother noticed blood on the washcloth after washing Nicole's vaginal area. Finally, petitioner submitted a certified medical report stating that Nicole's hymen had been ruptured.

Respondent testified on his own behalf and denied the allegations of abuse. He contends on appeal that Nicole's out-of-court statements describing incidents of sexual abuse were not sufficiently corroborated. ² Specif...