EAST, RONALD J. v. GILES, RACHEL L. ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1255
CAF 14-01152
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.
IN THE MATTER OF RONALD J. EAST,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
RACHEL L. GILES, RESPONDENT-APPELLANT.
--------------------------------------
IN THE MATTER OF RACHEL L. GILES,
PETITIONER-APPELLANT,
V
RONALD J. EAST, RESPONDENT-RESPONDENT.
GERALD J. VELLA, SPRINGVILLE, FOR RESPONDENT-APPELLANT AND PETITIONER-
APPELLANT.
TRAVIS J. BARRY, ATTORNEY FOR THE CHILDREN, HAMMONDSPORT.
Appeal from an amended order of the Family Court, Steuben County
(Joseph W. Latham, J.), entered February 27, 2014 in proceedings
pursuant to Family Court Act articles 6 and 8. The amended order,
among other things, granted the petition of Ronald J. East to modify
visitation and denied the family offense petition of Rachel L. Giles.
It is hereby ORDERED that the amended order so appealed from is
unanimously affirmed without costs.
Memorandum: In these proceedings pursuant to Family Court Act
articles 6 and 8, respondent-petitioner mother Rachel L. Giles appeals
from an order that granted the petition of petitioner-respondent
father Ronald J. East seeking to modify the visitation provisions of
the judgment of divorce with respect to the subject children, and
denied the mother’s petitions seeking termination of the father’s
visitation and a determination that the father committed a family
offense based on allegations that the father had sexually abused the
parties’ daughter. We note at the outset that Family Court issued an
amended order that superseded the order from which the mother appeals.
We nevertheless exercise our discretion to treat the notice of appeal
as valid and deem the appeal as taken from the amended order (see CPLR
5520 [c]; Matter of Donegan v Torres, 126 AD3d 1357, 1358, lv denied
26 NY3d 905). We further note that the mother failed to include in
the record on appeal the judgment of divorce. “Although [such an]
omission . . . ordinarily would result in dismissal of the appeal
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. . . , there is no dispute concerning the custody [and visitation]
provisions contained in the judgment,” and we therefore reach the
merits (Matter of Walker v Cameron, 88 AD3d 1307, 1308 [internal
quotation marks omitted]; see Matter of Carey v Windover, 85 AD3d
1574, 1574, lv denied 17 NY3d 710).
With respect to the parties’ article 6 petitions, we conclude
that the court did not abuse its discretion in determining that the
daughter’s out-of-court statements related to the alleged sexual abuse
were not reliably corroborated. “It is well settled that there is ‘an
exception to the hearsay rule in custody [and visitation] cases
involving allegations of abuse and neglect of a child, based on the
Legislature’s intent to protect children from abuse and neglect as
evidenced in Family Ct Act § 1046 (a) (vi)’ . . . , where . . . the
statements are corroborated” (Matter of Mateo v Tuttle, 26 AD3d 731,
732; see Matter of Ordona v Campbell, 132 AD3d 1246, 1247). “Although
the degree of corroboration [required] is low, a ‘threshold of
reliability’ must be met” (Matter of Zukowski v Zukowski, 106 AD3d
1293, 1294; see generally Matter of Nicholas J.R. [Jamie L.R.], 83
AD3d 1490, 1490, lv denied 17 NY3d 708). “The ‘repetition of an
accusation does not corroborate a child’s prior statement’ . . . ,
although the reliability threshold may be satisfied by the testimony
of an expert” (Zukowski, 106 AD3d at 1294; see Matter of Alexis S.
[Edward S.], 115 AD3d 866, 867). “Family Court has considerable
discretion in deciding whether a child’s out-of-court statements
alleging incidents of abuse have been reliably corroborated . . . ,
and its findings must be accorded deference on appeal where . . . the
. . . [c]ourt is primarily confronted with issues of credibility”
(Matter of Nicole G. [Louis G.], 105 AD3d 956, 956).
Here, there is no direct or physical evidence of abuse, and thus
“the case turns almost entirely on issues of credibility” (Matter of
Erinn G., 249 AD2d 879, 880). Although the mother correctly notes
that some corroboration may be provided through the consistency of a
child’s statements and that a child’s out-of-court statements may be
corroborated by testimony regarding the child’s increased sexualized
behavior (see Matter of Miranda HH. [Thomas HH.], 80 AD3d 896,
898-899), the court determined here that the mother’s witnesses—who
provided the corroborative testimony regarding the daughter’s
purportedly consistent statements and sexualized behavior—were not
credible. Conversely, the court credited the testimony of the father
and his witnesses that tended to cast doubt on the veracity of the
allegations of sexual abuse, and those credibility determinations are
entitled to deference (see Nicole G., 105 AD3d at 956). In
particular, we note that the court did not credit the mother’s expert
therapist because the therapist assumed from the outset that the
daughter had been abused and relied on evidence based predominately on
contact with the daughter in circumstances controlled by the mother
and her family. Indeed, the court-appointed psychologist who
evaluated the daughter criticized various aspects of the approach
employed by the therapist, including his practice of permitting the
mother to be present during some of the daughter’s therapy sessions
(see Zukowski, 106 AD3d at 1294). To the extent that the testimony of
the psychologist and the therapist conflicted, the court was entitled
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to give more probative weight to the testimony of the psychologist,
who ultimately determined that, absent the court’s determination that
the mother’s witnesses were credible, he could not conclude that the
daughter had been abused (see Matter of Breann B., 185 AD2d 711, 711).
Contrary to the mother’s contention, we conclude that the court
properly gave weight to the opinion of the court-appointed
psychologist, and agreed with the position of the Attorney for the
Children, who contended that the mother’s proof was insufficient to
establish that the daughter had been sexually abused by the father
(see Matter of Ciccone v Ciccone, 74 AD3d 1337, 1338, lv denied 15
NY3d 708).
To the extent that the mother contends that the court’s
determination to award the father unsupervised visitation with the
children lacks a sound and substantial basis in the record, we reject
that contention. It is well settled that “ ‘[v]isitation with the
noncustodial parent is presumed to be in the child[ren]’s best
interests . . . , and . . . denial of visitation is justified only for
a compelling reason’ ” (Matter of Nwawka v Yamutuale, 107 AD3d 1456,
1457, lv denied 21 NY3d 865). Here, inasmuch as the court determined
that the evidence did not establish that the father had sexually
abused the daughter, there was no compelling reason to deny the father
visitation. Although the mother correctly notes that the psychologist
recommended an incremental progression toward unsupervised visitation,
we conclude that “[t]here is no merit to the mother’s contention that
the court erred in disregarding the opinion of the court-appointed
[psychologist on that issue], as the . . . [c]ourt is not bound by the
recommendations of forensic experts” (Matter of Nelson v Nelson, 276
AD2d 634, 634).
Finally, we conclude that the court did not err in dismissing the
mother’s family offense petition.
Entered: December 23, 2015 Frances E. Cafarell
Clerk of the Court