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THE CHILD’S HEARSAY STATEMENTS CLAIMING HE WAS PUNCHED IN THE STOMACH WERE NOT CORROBORATED AND THEREFORE COULD NOT SUPPORT A FINDING OF NEGLECT BY THE INFLICTION OF EXCESSIVE CORPORAL PUNISHMENT (SECOND DEPT). ​

The Second Department, reversing (modifying) Family Court, determined the child’s hearsay statements claiming Manuel R. punched him in the stomach were not corroborated. Therefore the finding that Manuel R. neglected the child by inflicting excessive corporal punishment:

… [G]enerally a petitioner must present nonhearsay, relevant evidence to reliably corroborate the out-of-court disclosures … . Moreover, “repetition of an accusation by a child does not corroborate the child’s prior account of it” … .

Here, where there was no physical evidence of neglect, the child’s out-of-court statements that Manuel R. disciplined him by punching him in the stomach were not sufficiently corroborated by nonhearsay, relevant evidence tending to support the reliability of the statements. While the child did say “ow, ow it hurt” when a case worker touched his stomach, this occurred after the caseworker told the child that she did not see bruises on his stomach. Moreover, although the child made a fist to demonstrate to the caseworker what Manuel R. allegedly did when he punched him, he did this at the same time he made his verbal accusation that Manuel R. punched him. Under these circumstances, the child’s reaction to the caseworker’s touch and his gesture in making a fist were simply a repetition of his verbal accusation, which did not serve to corroborate his out-of-court statements … . As there was no other evidence tending to corroborate the child’s out-of-court statement, the Family Court’s finding that Manuel R. inflicted excessive corporal punishment on the child was not supported by a preponderance of the evidence. Matter of Treyvone A. (Manuel R.), 2020 NY Slip Op 07049, Second Dept 11-25-20

 

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