Matter of Tiarra D. , 1 N.Y.S.3d 492 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 8, 2015 518665
________________________________
In the Matter of TIARRA D.,
Alleged to be a Severely
Abused and/or Neglected
Child.
WASHINGTON COUNTY DEPARTMENT OF
SOCIAL SERVICES, MEMORANDUM AND ORDER
Appellant-
Respondent;
PHILIP C.,
Respondent-
Appellant.
________________________________
Calendar Date: November 12, 2014
Before: Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.
__________
Roger A. Wicks, County Attorney, Fort Edward (Daniel S.
Martindale of counsel), for appellant-respondent.
Cynthia Feathers, Glens Falls, for respondent-appellant.
Timothy M. Bulger, Greenwich, attorney for the child.
__________
Lahtinen, J.
Cross appeals from an order of the Family Court of
Washington County (Pritzker, J.), entered January 2, 2014, which,
among other things, partially granted petitioner's application,
in a proceeding pursuant to Family Ct Act article 10, to
adjudicate the subject child to be severely abused and/or
neglected.
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Petitioner commenced this proceeding in June 2012 alleging
that respondent had neglected and severely abused Tiarra D. (born
in 2003). Respondent is the boyfriend of and resides with
Tiarra's grandmother, who is the child's physical and legal
custodian. Allegations included that respondent had sexual
contact with the child and also that the child had sexual contact
with another child while being supervised by respondent.
Following a fact-finding hearing, Family Court found that the
child had been abused1 and neglected by respondent, but not
severely abused. Petitioner appeals from so much of Family
Court's order as dismissed its allegations that Tiarra was
severely abused, and respondent cross-appeals regarding the
findings of abuse and neglect.
We consider first respondent's argument that the proof was
not sufficient to establish abuse and neglect. "[P]etitioner
bore the burden of proving by a preponderance of the evidence
that respondent abused and neglected the child[]" (Matter of
Joshua QQ., 290 AD2d 842, 843 [2002]). A caseworker employed by
petitioner testified regarding her interview with the child in
which the child gave detailed descriptions – aided by drawings
and toy dolls – of the various sexual contact to which she was
subjected by respondent. The physician who had examined the
child testified that she observed a scar in the child's vaginal
opening that was consistent with sexual abuse by a male at least
12 years of age or older. Conflicting proof was presented in
that the child later recanted her allegations about respondent,
two therapists opined that the child had made up the story about
respondent and respondent denied engaging in the alleged conduct.
"[T]he reliability of the corroboration, as well as issues
of credibility, are matters entrusted to the sound discretion of
Family Court and will not be disturbed unless clearly unsupported
by the record" (Matter of Justin CC. [Tina CC.], 77 AD3d 1056,
1057 [2010], lv denied 16 NY3d 702 [2011]). Moreover, "[t]he
credibility issues raised by the child's recantation also were
for Family Court to resolve in the exercise of its broad
1
Although abuse was not specifically alleged in the
original petition, it was added without objection.
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discretion" (Matter of Caitlyn U., 46 AD3d 1144, 1146 [2007]; see
Matter of Kayla N., 41 AD3d 920, 922 [2007]). Family Court
explained at length the evidence that it found preponderated in
favor of petitioner and made many specific credibility
determinations, including that petitioner's caseworker was
"highly credible," the physician was "highly credible and
compelling" and respondent's testimony was "not credible." The
court discussed the evidence that corroborated the child's
initial version of events and also determined that the child's
recantation stemmed, in part, from fear of being alienated from
her family. We cannot say that Family Court abused its
discretion in its credibility determinations and, given those
determinations, the evidence in the record sufficiently supports
its findings of abuse and neglect.
Respondent further contends that his application for funds
to hire an expert should have been granted. Family Court set
forth ample reasons and did not abuse its discretion in denying
respondent's request pursuant to County Law § 722-c, which was
not made until after the hearing had started, to authorize
payment of $3,500 to retain a medical expert. The application
established neither necessity nor extraordinary circumstances
(see People v Clarke, 110 AD3d 1341, 1342 [2013], lv denied 22
NY3d 1197 [2014]; People v Brown, 67 AD3d 1369, 1370 [2009], lv
denied 14 NY3d 886 [2010]; People v Dearstyne, 305 AD2d 850, 852-
853 [2003], lv denied 100 NY2d 593 [2003]).
Petitioner argues that Family Court erred in determining
that severe abuse could not be found because respondent was not a
parent of the child. The statute regarding severe abuse
repeatedly refers to a child's "parent" (Social Services Law
§ 384-b [8]), whereas abuse and neglect include, in addition to a
parent, any "other person legally responsible for a child's care"
(Family Ct Act § 1012 [a]). We have previously stated that,
under the current statutory language, "severe abuse requires acts
committed by a parent" (Matter of Nicholas S. [John T.], 107 AD3d
1307, 1311 n 3 [2013], lv denied 22 NY3d 854 [2013])2 and the
2
We upheld a finding of severe abuse involving a nonparent
in Matter of Ramsey H. [Benjamin K.] (99 AD3d 1040 [2012], lv
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Second Department has held similarly (see Matter of Leonardo V.,
Jr. [Leonardo V.], 95 AD3d 1343, 1345 [2012]). Although Family
Court and petitioner articulated policy reasons that may support
extending severe abuse to a nonparent who is legally responsible
for a child's care, such an extension is for the Legislature.
Peters, P.J., Garry, Rose and Lynch, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
denied 20 NY3d 858 [2013]); however, the respondent in that case
did not challenge the applicability of severe abuse to a
nonparent.