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para 23:

1.
Matter of Shannon K, 222 AD2d 905 (3rd Dept 1995)

"A fact-finding hearing was held at which respondent testified, expert testimony was produced by both sides
and the child testified in camera.";

[at bar, NO EXPERT TESTIMONY & NO CHILD TESTIMONY]

child's account of the sexual touching by respondent was consistent in all material aspects
and was corroborated by not only the child's in camera testimony, but also...the two experts that testified"

[at bar, PROGRESS NOTES, AT BEST, NOT CONSISTENT, AMBIGUOUS]

"Notably, both experts, including that of respondent, stated that the child's statements and behaviors
were consistent with those of a child who had been sexually abused."

[at bar, the NO BEHAVIOR CONSISTENT WITH SEXUAL ABUSE IS ALLEGED, EXCEPT FOR SUPPOSED MASTURBATION, DISPUTED BY THE THE CHILD's STATEMENTS]

"In addition, petitioner's expert psychotherapist opined that the child had been sexually abused."

[NO EXPERT PSYCHOTHERAPIST]

"We find the evidence sufficient
to support Family Court's finding that the child was sexually abused
and that respondent was the perpetrator."
---
"Respondent contends that there was no proof that the alleged touching was of a sexual nature or for the purpose of gratifying sexual desire (see, Matter of Michael M., 156 Misc.2d 98). However, unlike the situation in Matter of Michael M. (supra), respondent denied ever engaging in the alleged conduct and, in any event, there can be no innocent explanation for the conduct respondent was found to have committed by Family Court "which involved the deviate touching of [the child's] genitalia" (Matter of Olivia YY., 209 A.D.2d 892). Thus, the sexual gratification element can be inferred from the conduct itself (see, supra).
---
As a final matter, it is true that Family Court did not specify under which subdivision of Family Court Act § 1012 (e) the abuse was found as well as the particular sex offense perpetrated upon the child as defined in Penal Law article 130 as required by statute (see, Family Ct Act §1051[e]). Based on the record before us, however, we find the defects technical in nature and harmless (see, Matter of Nichole L., 213 A.D.2d 750, lv denied 86 N.Y.2d 701). In light of the child's age at the time of the contact (less than 11 years old) and Family Court's detailed factual findings, we find that the specific offense could only be sexual abuse in the first degree (see, Penal Law § 130.65; see also, Matter of Ashley AA., 212 A.D.2d 937).

2.
Matter of Patricia J, 206 AD2d 847 (4th Dept. 1994)

At the fact-finding hearing on a petition alleging sexual abuse, respondent admitted massaging the vagina and buttocks of his eight-year-old daughter on many occasions. He denied that he received sexual gratification from his acts, maintaining that it was merely his way of showing affection. Medical records contained findings consistent with sexual abuse.

           [EVIDENCE = ADMISSION OF MASSAGING, PLUS MEDICAL RECORDS CONSISTENT WITH ABUSE]

In our view, it can reasonably be inferred from the evidence that, despite denials by respondent, his actions were for the purpose of sexual gratification (see, People v Teicher, 52 N.Y.2d 638, 646-647; People v Bockeno, 124 A.D.2d 1008; cf., Matter of Michael M., 156 Misc.2d 98, 100-102). Therefore, Family Court's conclusion that respondent abused his daughter is supported by a preponderance of the evidence. Moreover, his sexual abuse of his daughter and his belief that such behavior was a permissible way of demonstrating affection reveals "a fundamental defect in [respondent's] understanding of the duties of parenthood", placing respondent's son at substantial risk of harm (Matter of Dutchess County Dept. of Social Servs. [Douglas E., III] v Douglas E. Jr., 191 A.D.2d 694; see also, Matter of Lynelle W., 177 A.D.2d 1008). Consequently, the court's conclusion that respondent neglected his son is supported by a preponderance of the evidence.

3.
In re Leslie R., 138 AD3d 488 (1st Dept 2016)

Contrary to respondent's contention, his stepdaughters' out-of-court statements that he was inappropriately touching them was sufficiently corroborated by his own out-of-court statements that although he knew that his “rough housing” was making them uncomfortable, he continued touching them (see Matter of N. & G. Children, 176 A.D.2d 504, 504–505, 574 N.Y.S.2d 696 [1st Dept.1991] ). The fact that one of the stepdaughters vaguely recanted her statements did not render her initial statements incredible as a matter of law (see Matter of Shawn P., 266 A.D.2d 907, 908, 697 N.Y.S.2d 901 [4th Dept.1999], lv. denied 94 N.Y.2d 760, 706 N.Y.S.2d 81, 727 N.E.2d 578 [2000] ). Moreover, the fact that the stepdaughters did not have a physical injury or other corroboration does not require a different result (see Matter of Jonathan F., 294 A.D.2d 121, 744 N.Y.S.2d 362 [1st Dept.2002], citing Matter of Danielle M.,151 A.D.2d 240, 242–243, 542 N.Y.S.2d 525 [1st Dept.1989] ).

Upon petitioner establishing its prima facie case, the burden shifted to respondent to explain his conduct and rebut the evidence of his culpability, but he presented no credible evidence in his defense (see Matter of Elizabeth S. [Dona M.], 70 A.D.3d 453, 453–454, 894 N.Y.S.2d 51 [1st Dept.2010] ). Respondent's intent to gain sexual gratification was properly inferred from his continuing to touch his stepdaughters even after he was told he was making them uncomfortable (see Matter of Daniel R. [Lucille R.], 70 A.D.3d 839, 841, 894 N.Y.S.2d 165 [2d Dept.2010] ).

[at bar, NO EVIDENCE OF KNOWLEDGE THAT CHILD WAS "UNCOMFORTABLE" BY TOUCHING
-- OR HAD EVER STATED SAME TO PARENTS]

The Family Court providently exercised its discretion in granting the motion of the stepdaughters' attorney to quash respondent's subpoena to compel one of his stepdaughters to testify at the hearing because the letter from the child's psychotherapist and the affidavit from the child's social worker provided evidence of the potential psychological harm that testifying would cause to the child (see Matter of Imman H., 49 A.D.3d 879, 881, 854 N.Y.S.2d 517 [2d Dept.2008] ; Matter of Jennifer G., 261 A.D.2d 823, 687 N.Y.S.2d 844 [4th Dept.1999] ).

[at bar, NO EVIDENCE THAT JUDGE, COUNTY, OR CHILD FOR ATTORRNEY
COULD NOT HAVE PROCURED CHILD'S TESTIMONY TO SUBSTANTIATE
ALLEGED OUT-OF-COURT STATEMENTS]

4.
Matter of Kathleen OO, 232 AD2d 784 (3rd Dept. 1996)

A finding that a child has been abused or neglected pursuant to Family Court Act article 10 must be based upon a preponderance of the evidence (see, Matter of Tammie Z., 66 N.Y.2d 1; see also, Matter of Patricia J., 206 A.D.2d 847, lv denied 84 N.Y.2d 810; Matter of Commissioner of Social Servs. of City of N. Y. [Shevonne S.], 188 A.D.2d 528, 530; Matter of Anna B., 185 A.D.2d 311, 312). Credibility issues, as well as the weight to be given the evidence presented, are primarily determined by the trier of fact (see, Matter of Joey T., 185 A.D.2d 851; see also, Matter of Esther CC., 194 A.D.2d 949, 951). Family Court's determination is entitled to great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, Matter of Commissioner of Social Servs. of City of N. Y. [Shevonne S.], supra, at 529).

Our review of the record indicates that the allegations of abuse have been established by a preponderance of the evidence. Although, as respondent points out, the medical evidence of abuse was not conclusive, other evidence of abuse was adduced at the fact-finding hearing. Respondent gave a statement to police in which she admitted the abuse. Although she testified at the fact-finding hearing that she did not remember any of the events recounted in her statement, she also stated that she answered the police officers' questions truthfully at the time, that she remembered giving the statement and having it read back to her, and that the events set forth in the statement "might have happened". Respondents admission of abuse thus sufficiently corroborated Kathleen's out-of-court statements regarding the abuse, as required by Family Court Act § 1046 (a) (vi), despite the fact that respondent's later testimony was equivocal (see, Matter of Margaret W., 83 A.D.2d 557, lv denied 54 N.Y.2d 609). Further, Kathleen gave unsworn testimony in court that respondent had sexually abused her. This testimony, which was subject to cross-examination, also corroborated Kathleen's previous out-of-court statements (see, Matter of Christina F., 74 N.Y.2d 532). Finally, subsequent to the fact-finding hearing but prior to the dispositional hearing, respondent pleaded guilty to sexual abuse in the second degree. The fact of this conviction also serves as evidence that Kathleen was sexually abused (see, Matter of Suffolk County Dept. of Social Servs. [Michael V.] v James M., 83 N.Y.2d 178, 182-183)."

[at bar, NO ADMISSIONS OF ABUSE;
NO CHILD TESTIMONY IN COURT; NO CRIMINAL PROSECUTION]

para 24:

1.
Matter of Nicholas J.R. , 83 AD3d 1490 (4th Dept. 2011),
lv denied 17 NY3d 708 (2011)

"Courts have "considerable discretion in determining whether a child's out-of-court statements describing incidents of abuse have been reliably corroborated and whether the record as a whole supports a finding of abuse" (Colberdee C., 2 AD3d at 1317; see Nicholas L., 50 AD3d at 1142), and "[t]he Legislature has expressed a clear 'intent that a relatively low degree of corroborative evidence is sufficient in abuse proceedings' " (Matter of Jessica N., 234 AD2d 970, 971 [1996], appeal dismissed 90 NY2d 1008 [1996]; see Matter of Richard SS., 29 AD3d 1118, 1121 [2005]). Here, the out-of-court statements of the child were sufficiently corroborated by the testimony of an evaluating psychologist who opined that the child's statements made both to the psychologist and to a caseworker for child protective services during a videotaped interview were credible (see Family Ct Act § 1046 [a] [vi]; Matter of Annastasia C. [Carol C.], 78 AD3d 1579 [2010]; see also Alston C., 78 AD3d at 1661).

[at bar, NO TESTIMONY OF EVALUATING PSYCHOLOGIST,
NO CHILD STATEMENTS, ASIDE FROM PROGRESS NOTES & REFERRAL,
NO VIDEOTAPED INTERVIEWS"]

2.
Matter of Crystal S., 193 AD3d 1353 (4th Dept. 2021)

"A child's out-of-court statements may form the basis for a finding of [abuse or] neglect as long as they are sufficiently corroborated by [any] other evidence tending to support their reliability" (Matter of Nicholas L., 50 A.D.3d 1141, 1142 [2d Dept 2008]; see § 1046[a][vi]; Matter of Nicole V., 71 N.Y.2d 112, 117-118 [1987], rearg denied 71 N.Y.2d 890 [1988]). "Courts have considerable discretion in determining whether a child's out-of-court statements describing incidents of abuse have been reliably corroborated and whether the record as a whole supports a finding of abuse[ or neglect] ..., and [t]he Legislature has expressed a clear intent that a relatively low degree of corroborative evidence is sufficient in [child protective] proceedings" (Matter of Nicholas J.R. [Jamie L.R.], 83 A.D.3d 1490, 1490 [4th Dept 2011], lv denied 17 N.Y.3d 708 [2011] [internal quotation marks omitted]).

"partial admission by respondent, together with testimony from the child's mother that was consistent with some details of the child's allegations...was sufficient to corroborate the child's out-of-court statements (see Family Ct Act § 1046[a][vi]; see generally Matter of Sandra S., 195 A.D.2d 1070, 1071 [4th Dept 1993])"

[at bar, no partial admissions]

3.
Matter of Skyler D., 185 AD3d 1515 (4th Dept. 2020)

"Courts have considerable discretion in determining whether a child's out-of-court statements describing incidents of abuse have been reliably corroborated and whether the record as a whole supports a finding of abuse [or neglect] . . . , and [t]he Legislature has expressed a clear intent that a relatively low degree of corroborative evidence is sufficient in [child protective] proceedings" (Matter of Nicholas J.R. [Jamie L.R.], 83 AD3d 1490, 1490 [4th Dept 2011], lv denied 17 NY3d 708 [2011] [internal quotation marks omitted]).
Here, the...disclosures of sexual abuse were sufficiently corroborated by the testimony of her speech therapist, a school psychologist, and a caseworker trained in forensic interviewing techniques, as well as by the child's "age-inappropriate knowledge of sexual matters" (Matter of Liam M.J. [Cyril M.J.], 170 AD3d 1623, 1624 [4th Dept 2019], lv denied 33 NY3d 911 [2019] [internal quotation marks omitted]; see Family Ct Act § 1046 [a] [vi]; Matter of Brooke T. [Justin T.], 156 AD3d 1410, 1411 [4th Dept 2017]). Furthermore, we note that "the child gave multiple, consistent descriptions of the abuse and, [a]lthough repetition of an accusation by a child does not corroborate the child's prior account of [abuse] . . . , the consistency of the child['s] out-of-court statements describing [the] sexual conduct enhances the reliability of those out-of-court statements" (Brooke T., 156 AD3d at 1411 [internal quotation marks omitted])."

[Here NO corroborating testimony of school or psychology professionals
and child's out-of-court statements were ambiguous and inconsistent]

"Although the father is correct that "the court failed to comply with Family Court Act § 1051 (e) by specifying the particular sex offense perpetrated upon the child as defined in Penal Law article 130," we conclude that the error is " 'technical in nature and harmless'" (Matter of Eden S. [Joshua S.], 117 AD3d 1562, 1563 [4th Dept 2014], lv denied 24 NY3d 906 [2014]; see Matter of Shannon K., 222 AD2d 905, 906 [3d Dept 1995]). Because the older daughter was seven years old at the time of the contact, the specific offense could only be sexual abuse in the first degree (see Penal Law §130.65 [3]; Eden S., 117 AD3d at 1563). Contrary to the father's further contention, where, as here, the underlying crime is sexual abuse, "the court is permitted to infer the sexual gratification element from the conduct itself if that conduct involved the deviate touching of the child's genitalia," which is the case here (Eden S., 117 AD3d at 1563)."

Matter of Olivia YY, 209 A.D.2d 892 (App Div. 1994): "Respondent relies upon Matter of Michael M. (156 Misc.2d 98, 101), but in that case the parent conceded that he had touched his children as alleged and presented an innocent explanation for his conduct which the trial court found believable. Here, in contrast, respondent does not claim an innocent explanation for the conduct...It is undisuted that there could be no justification or innocent explanation for the conduct...Considering the evidence as a whole, we conclude that the sexual gratification element can be inferred from the conduct itself (see, People v. Estela, 136 A.D.2d 728, 729, lv denied 71 N.Y.2d 895)." -- (in that case 7 & 8 year old children, testifying)

Matter of Stefanel Tyesha C., 157 AD2d 322 (1^st dept 1990)

In re Donnisha S 1051-c

July 29 -- CPLR 2307

Sara L. 249 A.D. 2d 23, 671 NYS 2d. 232, 1^st Dept. 1998, Matter of Dan T. v. Anna D., 71 A.F.3d 1376, In re Zyaya, 52 Misc. 3d 740, Matter of Myriam L., 17 Misc. 3d. 1125(A).

Sara L
The claims set forth in the petitions are either contradicted by the agency’s own witnesses or documentary evidence, or conclusively resolved in respondent parents’ favor by.reference to record evidence. The Family Court failed to address the specific claims or to analyze the relevant evidence and erred in denying summary judgment dismissing the petitions. Parenthetically, we note that the respondent parents’ application pursuant to Family Court Act §1028 to have their children returned to them should have received a hearing within three court days and no adjournments should have been granted; no good cause was demonstrated in this case for the delay.
In view of the paucity of the allegations of neglect and abuse, contradicted by both the testimonial and documentary evidence, summary judgment should have been granted and the petitions dismissed.

it is clear that summary judgment is a permissible procedural device in Family Court Article 10 cases. See, Suffolk County [30 N.Y.S.3d 806] Dept. of Social Services on Behalf of Michael V. v. James M., 83 N.Y.2d 178, 182, 630 N.E.2d 636, 608 N.Y.S.2d 940 [1994]("[W]e see no reason why summary judgment is not an appropriate procedure in proceedings under Family Court Act article 10."); see also, In re Christopher Anthony M., 46 A.D.3d 896, 897, 848 N.Y.S.2d 711 [2d Dept 2007] (reversing trial court's dismissal of Respondent'

Family Court Act 1011

Family Court Act 1038

Matter of Myriam L., 17 Misc. 3d. 1125(A).

Matter of Thea T, 174 Misc 2d 227 (Fam. Ct. Suffolk Co. 1997)

Matter of Jessica, 78 NY2d 1031 (1991)

Matter of Cameron R, 251 AD2d 1073 (4th Dept 1998)

Matter of Megan G, 266 AD2d 835 (4th Dept 1999)

Matter of Ashley B, 2 AD3d 1402 (4th Dept 2003)

Matter of Tara H, 129 Misc.2d 508

----

Matter of Jonathan M, 306 AD2d 413 (2nd Dept. 2003)

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Post Office Box 8101, White Plains, New York 10602
Tel: (914) 421-1200
e-mail: mail@judgewatch.org