Case Summary: In the Matter of RUSSELL B. and Others

Factual and Procedural Background

Respondent David B. is the biological father of three children: Russell (born 1988), Kayla (born 1992) and Brittany (born 1996). On or about November 26, 1996, respondent was arrested and charged with engaging in a course of sexual conduct against a child in the first degree in violation of Penal Law § 130.75, based on allegations that he had compelled Russell to engage in oral sex. In January 1997 the petitioner (Delaware County Department of Social Services) commenced this child abuse and neglect proceeding alleging, among other things, that respondent had sexually abused Russell. A fact-finding hearing was held in June 1997, during which proof of respondent's December 1996 plea of guilty to sexual abuse in the second degree was entered into evidence. Family Court adjudicated Russell to be a sexually abused child and made derivative findings of neglect as to Kayla and Brittany. After a dispositional hearing, respondent was placed under petitioner's supervision for one year. Respondent appealed from Family Court's order. The children's mother was named in the petition but had reached a settlement with petitioner and her case was severed prior to the fact-finding hearing.

Legal Issues Presented

Whether the record, considered as a whole, establishes by a preponderance of the evidence that respondent sexually abused Russell.

Arguments of the Parties

Appellant's Arguments (Respondent David B.)

Respondent's brief was limited to arguing that the record as a whole does not establish, by a preponderance of the evidence, that he sexually abused Russell (citing Matter of Ashley M.).

Petitioner’s Position (Delaware County Department of Social Services)

Petitioner presented testimony from the caseworker and a school social worker that Russell made detailed verbal statements describing the abuse and demonstrated the acts with anatomically correct dolls.
Petitioner introduced a certificate of disposition reflecting respondent's December 1996 guilty plea to sexual abuse in the second degree and the sentence imposed, which it relied upon as corroboration of the child's statements.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Ashley M, 235 A.D.2d 858	Reference to the preponderance of the evidence standard applicable to Family Court fact-finding.	The court cited Ashley M. for the proposition that the petitioner must establish abuse by a preponderance of the evidence; respondent challenged sufficiency under that standard.
Matter of Tracy V. v. Donald W., 220 A.D.2d 888, 889	That Family Court has broad discretion to determine whether a child's statements have been sufficiently corroborated.	The court relied on this precedent to confirm Family Court's authority to assess corroboration and exercise discretion in determining whether the child's statements were sufficiently corroborated.
Matter of Kathleen OO., 232 A.D.2d 784, 785	Recognition that a certificate of disposition reflecting a conviction may serve as corroboration of a child's statements.	The court found corroboration in the certificate of disposition showing respondent's conviction upon his plea of guilty to sexual abuse in the second degree and applied Kathleen OO. as support for that form of corroboration.

Court's Reasoning and Analysis

The court reviewed the evidentiary record and identified two principal categories of evidence presented at the fact-finding hearing: (1) testimony from the petitioner's caseworker and a school social worker that Russell made detailed verbal statements describing oral sex and demonstrated the acts with anatomically correct dolls; and (2) a certificate of disposition entered into evidence reflecting respondent's December 1996 guilty plea to sexual abuse in the second degree and the sentence imposed.

The court acknowledged the settled rule that a child's statements, standing alone, may be insufficient to support a finding of abuse. It then invoked Family Court Act § 1046 (a) (vi), which authorizes that "[a]ny other evidence tending to support the reliability of the previous statements * * * shall be sufficient corroboration." The court emphasized that Family Court has broad discretion to determine whether particular statements have been adequately corroborated, citing Matter of Tracy V. v. Donald W. In applying that framework here, the court concluded that the certificate of disposition reflecting respondent's conviction upon his guilty plea constituted corroborative evidence sufficient to support the reliability of Russell's statements, citing Matter of Kathleen OO. Consequently, the court found the preponderance-of-the-evidence standard satisfied and affirmed Family Court's findings.

Holding and Implications

Holding: The Appellate Division affirmed Family Court's amended order. The court ordered that the amended order is affirmed, without costs.

Direct implications for the parties: Family Court's adjudication that Russell was a sexually abused child and the derivative findings of neglect as to Kayla and Brittany are affirmed; respondent's disposition placing him under petitioner's supervision for one year is sustained.

Broader implications: The opinion applied existing principles regarding corroboration of child statements and accepted a certificate of disposition reflecting a guilty plea as corroboration. The opinion does not announce or discuss any broader new precedent beyond applying the cited authorities.

Show full summary ...

In the Matter of RUSSELL B. and Others, Children Alleged to be Abused and Neglected. DELAWARE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondents; DAVID B. et al., Appellant, et al., Respondent.

Insofar as is relevant to this appeal, respondent David B. (hereinafter respondent) is the biological father of three children, Russell (born in 1988), Kayla (born in 1992) and Brittany (born in 1996). On or about November 26, 1996, respondent was arrested and charged with engaging in a course of sexual conduct against a child in the first degree in violation of Penal Law § 130.75. The charges stemmed from allegations that respondent had compelled Russell to engage in oral sex with him. In conjunction therewith, petitioner commenced this proceeding in January 1997 alleging, inter alia, that respondent had sexually abused his son. The matter proceeded to a fact-finding hearing in June 1997, during the course of which proof of respondent's December 1996 plea of guilty to the crime of sexual abuse in the second degree was entered into evidence. Family Court thereafter adjudicated Russell to be a sexually abused child and made derivative findings of neglect with respect to Kayla and Brittany. Following a dispositional hearing, respondent was placed under petitioner's supervision for a period of one year. This appeal by respondent ensued.

Although the children's mother also was named as a respondent in the petition, the mother apparently reached a settlement with petitioner prior to the fact-finding hearing conducted in this matter, prompting Family Court to sever her case from this matter.

Respondent, as so limited by his brief, contends only that the record as a whole does not establish by a preponderance of the evidence ( see, Matter of Ashley M, 235 A.D.2d 858) that he sexually abused Russell. We cannot agree. Both petitioner's caseworker and a social worker at Russell's school testified that Russell made detailed statements to them describing respondent's sexual abuse. Specifically, both testified that Russell verbally described acts of oral sex and demonstrated such sexual activity through the use of anatomically correct dolls. Although respondent is correct that such statements, standing alone, are not sufficient to support a finding of abuse, Family Court Act § 1046 Fam. Ct. Act (a) (vi) broadly provides that "[a]ny other evidence tending to support the reliability of the previous statements * * * shall be sufficient corroboration". In this regard, this Court repeatedly has acknowledged that Family Court is vested with broad discretion to determine, in the first instance, whether a particular child's statements have been sufficiently corroborated ( see, e.g., Matter of Tracy V. v. Donald W., 220 A.D.2d 888, 889). Here, such corroboration may be found in the form of the certificate of disposition entered into evidence at the fact-finding hearing reflecting respondent's conviction upon his plea of guilty of the crime of sexual abuse in the second degree and the sentence imposed thereunder ( see, Matter of Kathleen OO., 232 A.D.2d 784, 785). Accordingly, Family Court's amended order is affirmed.

Mikoll, J.P., Yesawich Jr., Peters and Spain, JJ., concur.

Ordered that the amended order is affirmed, without costs.

MATTER OF RUSSELL B