Opinion
57 CAF 17–02173
03-22-2019
In the MATTER OF LIAM M.J. Genesee County Department of Social Services, Petitioner–Respondent; v. Cyril M.J., Respondent–Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR RESPONDENT–APPELLANT. KEVIN EARL, COUNTY ATTORNEY, BATAVIA (COLLEEN S. HEAD OF COUNSEL), FOR PETITIONER–RESPONDENT. JACQUELINE M. GRASSO, BATAVIA, ATTORNEY FOR THE CHILD.
BRIDGET L. FIELD, ROCHESTER, FOR RESPONDENT–APPELLANT.
KEVIN EARL, COUNTY ATTORNEY, BATAVIA (COLLEEN S. HEAD OF COUNSEL), FOR PETITIONER–RESPONDENT.
JACQUELINE M. GRASSO, BATAVIA, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent father appeals from an order that, inter alia, found that he neglected and abused the subject child and placed the child in the custody of petitioner. We affirm.
The father contends that Family Court erred in denying his motion to dismiss the petition at the close of petitioner's proof because petitioner failed to prove by a preponderance of the evidence that the child was neglected or abused. We reject that contention. "While the burden of proving abuse or neglect always rests with petitioner, upon a motion ... to dismiss a Family Court Act article 10 petition at the close of petitioner's case, the proper inquiry [is] whether petitioner [has] made out a prima facie case, thereby shifting the burden to respondent[ ] to rebut the evidence of parental culpability" ( Matter of Mary R.F. [Angela I.] , 144 A.D.3d 1493, 1493, 41 N.Y.S.3d 341 [4th Dept. 2016], lv denied 28 N.Y.3d 915, 52 N.Y.S.3d 293, 74 N.E.3d 678 [2017] [internal quotation marks omitted] ). Petitioner met its initial burden by establishing that, within the time frame alleged in the petition, the father committed against the child an act constituting sexual abuse in the first degree in violation of Penal Law § 130.65(3) (see Family Ct. Act § 1012[e][iii][A] ; [f][i][B] ).
Contrary to the father's further contention, we conclude that there is a sound and substantial basis for the court's ultimate determination that the child was neglected and abused as a result of the father's sexual abuse of the child (see generally Family Ct. Act § 1046[b][i] ; Matter of Sean P. [Brandy P.] , 156 A.D.3d 1339, 1339–1340, 65 N.Y.S.3d 902 [4th Dept. 2017], lv denied 31 N.Y.3d 903, 77 N.Y.S.3d 654, 102 N.E.3d 430 [2018] ). Here, the child's disclosures of the sexual abuse were sufficiently corroborated by the testimony of a forensic expert, a caseworker, and the child's caretaker, who was not involved in the custody dispute between the mother and the father, as well as by the child's "age-inappropriate knowledge of sexual matters" ( Matter of Brooke T. [Justin T.] , 156 A.D.3d 1410, 1411, 67 N.Y.S.3d 377 [4th Dept. 2017] ; see § 1046[a][vi] ). Furthermore, "the child gave multiple, consistent descriptions of the abuse and, ‘[a]lthough repetition of an accusation by a child does not corroborate the child's prior account of [abuse] ..., the consistency of the child['s] out-of-court statements describing [the] sexual conduct enhances the reliability of those out-of-court statements’ " ( Brooke T., 156 A.D.3d at 1411, 67 N.Y.S.3d 377 ). The reliability of the corroboration is a "determination entrusted in the first instance to [the court's] considerable discretion" ( Matter of Timothy B. [Paul K.] , 138 A.D.3d 1460, 1461, 30 N.Y.S.3d 455 [4th Dept. 2016], lv denied 28 N.Y.3d 908, 2016 WL 6783120 [2016] [internal quotation marks omitted] ), and we find no reason to disturb the court's determination here.
Finally, we agree with the father that the court erred in drawing a negative inference against him based on his failure to call his girlfriend as a witness. "A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party" ( Matter of Spooner–Boyke v. Charles , 126 A.D.3d 907, 909, 4 N.Y.S.3d 137 [2d Dept. 2015] [internal quotation marks omitted]; see DeVito v. Feliciano , 22 N.Y.3d 159, 165–166, 978 N.Y.S.2d 717, 1 N.E.3d 791 [2013] ). "The party seeking a missing witness inference has the initial burden of setting forth the basis for the request as soon as practicable ... to[, inter alia,] avoid substantial possibilities of surprise" ( Matter of Lewis , 158 A.D.3d 1247, 1250, 71 N.Y.S.3d 786 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2920801 [2018][internal quotation marks omitted]; see generally People v. Nguyen , 156 A.D.3d 1461, 1462, 65 N.Y.S.3d 876 [4th Dept. 2017], lv denied 31 N.Y.3d 1016, 78 N.Y.S.3d 286, 102 N.E.3d 1067 [2018] ). Here, in its written decision, "[t]he court sua sponte drew a negative inference based on the [father's] failure to call [his girlfriend] as a witness, and failed to advise [him] that it intended to do so" ( Spooner–Boyke , 126 A.D.3d at 909, 4 N.Y.S.3d 137 ). Thus, the father "lacked the opportunity to explain [his] failure to call [his girlfriend] as a witness, or to discuss whether [his girlfriend] was even available to testify or under [his] control" ( id. ). We conclude, however, that the error did not affect the result (see generally Matter of Antoine C. , 124 A.D.3d 433, 434, 1 N.Y.S.3d 54 [1st Dept. 2015], lv denied 25 N.Y.3d 905, 2015 WL 2105516 [2015] ; Matter of LaRussa v. Williams , 114 A.D.3d 1052, 1054, 980 N.Y.S.2d 605 [3d Dept. 2014] ).