THERE WAS NO EVIDENCE TO CORROBORATE THE OLDER CHILD’S OUT-OF-COURT ALLEGATIONS OF ABUSE BY FATHER; THE ABUSE AND DERIVATIVE ABUSE PETITION WAS DISMISSED (THIRD DEPT).

The Third Department, reversing Family Court, determined there was no evidence to corroborate the older child’s out-of-court statements. Therefore, the petition alleging abuse of the older child and derivative abuse of the younger siblings was dismissed:

At the hearing, petitioner offered the testimony of the children’s mother, two caseworkers, and the video recording of the oldest child’s interview with the Orange County Department of Social Services caseworker and a State Police investigator. The mother testified that when the oldest child was 17 years of age, she first disclosed the allegations of sexual contact to her. Thereafter, each caseworker testified that the oldest child told them that her father had sexual contact with her from approximately two years of age until she was eight. The caseworkers further testified that the oldest child explained that her memory of the abuse was triggered when she overheard her youngest sister make reference to a secret that she held with her father. The record also reveals that there was no additional evidence of any kind presented by petitioner that corroborated the oldest child’s out-of-court statements. For example, there was no medical evidence of any sort, nor did the mother or anyone else point to any change in the oldest child’s behavior, or indications of inappropriate sexual knowledge or behavior, nor was there any expert testimony to validate the oldest child’s account of sexual abuse, or to explain the nine-year gap between the cessation of the sexual contact and the allegations of same. While there was some testimony by the mother that the child has had nightmares since she was very young and has been diagnosed with anxiety, there was no testimony, expert or otherwise, linking the nightmares or diagnosis to the alleged sexual contact. While Family Court correctly noted that a child’s out-of-court allegations of sexual abuse — as testified to by the caseworkers — can be sufficiently corroborated by the child’s detailed in-court testimony … , petitioner did not present the oldest child as a sworn witness. Finally, there was no cross-corroboration of the oldest child’s statements by her siblings as the two younger children did not disclose any sexual abuse to their mother or during the initial interview. The younger two children did not give sworn testimony at the fact-finding hearing nor were the video recordings of their interviews with the caseworker admitted into evidence. Matter of Gabriella X. (Erick Y.), 2024 NY Slip Op 05856, Third Dept 11-21-24

Practice Point: Although out-of-court allegations of sexual abuse (made to caseworkers and police investigators) may support an abuse finding, the out-of-court statements must be corroborated.