Abuse Was Not Demonstrated; Non-Testifying Child’s Out-Court-Statements Not Corroborated by Witnesses Who Testified About What the Child Told Them
The Third Department affirmed Family Court’s determination that the petitioner had not met its burden of proof that respondent had abused a child (Kaelynn). The child did not testify and petitioner relied entirely on the testimony of four people to whom the child had disclosed abuse, and the observations of the child’s demeanor during the disclosures. No medical proof was submitted. In finding the out-of-court allegations made by the child had not been corroborated, the court explained:
…[T]he record contains insufficient evidence to corroborate Kaelynn’s allegations. Significantly here, a child’s uncorroborated unsworn allegations of abuse alone are insufficient to sustain a finding of abuse (see Family Ct Act § 1046 [a] [vi]) and, although “a child’s out-of-court 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'” …, there is “a threshold of reliability that the evidence must meet” … . “Whether this corroboration requirement has been satisfied is a ‘fine judgment’ entrusted in the first instance to Family Court, which has the advantage of having heard and seen the various witnesses” … .
Under established law, Kaelynn’s repetition of the allegations of abuse to the testifying witnesses, however consistent and believable, is not sufficient to corroborate these prior out-of-court statements … . Petitioner presented no expert testimony to “objectively validate [Kaelynn’s] account” or to “relate any of her past or present conduct or characteristics to the alleged sexual abuse” … . While a police investigator who interviewed Kaelynn testified that he conducted a “truth versus lie” inquiry of her and concluded that she understood the consequences of lying, he did not explain his methodology for reaching this conclusion nor did he relate whether her account fit any profile for truthful testimony from abused children … . Moreover, there was no physical evidence of sexual abuse …, and Kaelynn – in light of her young age — did not give sworn testimony nor was she questioned in camera … . Matter of Dezarea T …, 514693, 3rd Dept 10-31-13