Appeal from an order of the Family Court of Albany County (M. Walsh, J.), entered October 2, 2008, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondent’s children to be abused and/or neglected.
Respondent and the mother — married in 1998 — are the parents of three daughters — April HH., Miranda HH. and Alexandria HH. (born in 1997, 1999 and 2002, respectively). Although respondent’s and the mother’s relationship was deteriorating by 2005, they continued to reside in the same household, with respondent being the primary caretaker of the children. In November 2006, the mother noticed that Miranda was masturbating excessively and, based on a prior incident of sexual abuse allegedly perpetrated on Miranda by a babysitter in 2001, became concerned that her daughter had, again, been sexually abused. The mother began to regularly ask Miranda if someone was touching her and, on April 12, 2007, Miranda informed her mother that respondent had touched her “pee-tail” while she was in the shower. Five days later, on the same date that respondent filed a petition seeking custody of the children, the mother brought Miranda to the police station, where Miranda disclosed two incidents of sexual abuse perpetrated on her by respondent.
Shortly thereafter, petitioner commenced this proceeding alleging that respondent abused and/or neglected his children. Following a fact-finding hearing that occurred between November 2007 and June 2008, Family Court found that respondent had abused Miranda and neglected April and Alexandria. Respondent now appeals, arguing that petitioner failed to estab
“In a Family Ct Act article 10 proceeding, petitioner bears the burden of proving abuse and/or neglect by a preponderance of the evidence” (Matter of Telsa Z. [Rickey Z. — Denise Z.],
To meet its burden, petitioner presented the testimony of Lisa Sciortino, a caseworker employed by petitioner, Francine Balmaceda, a licenced clinical social worker who counseled the mother and children, and Christina Hippchen, Miranda’s third grade teacher. In addition, April and Miranda also testified prior to the close of petitioner’s case.
During her in camera testimony, Miranda disclosed that respondent had inappropriately touched her on three occasions— the first when she was approximately two or three years old in respondent’s bedroom, the second when she was slightly older while in the bath, and the third in her bedroom. When asked how the touching made her feel, Miranda initially responded “unhappy,” but then added that it was “relaxing too at the same time.” April testified that when she was five or six years old, she observed respondent touch Miranda “in a bad way” through a partially-opened bedroom door.
To serve as the basis for a finding of abuse, the out-of-court statements of Miranda made to both Sciortino and Balmaceda “required corroboration by any other evidence tending to support their reliability” (Matter of Brooke KK. [Paul KK.],
Family Court acknowledged that Miranda’s in-court testimony was inconsistent with prior statements on certain minor points, but found that her testimony was not rendered incredible as a result, observing that, “rather, it suggests that she had sexual contact with her father many times.” In this regard, we note that “the reliability of the corroboration, as well as issues of credibility, are matters entrusted to the sound discretion of Family Court” (Matter of Justin CC. [Tina CC.],
In opposition to petitioner’s case, respondent testified on his own behalf and called the mother, John Yuille, a forensic psychologist, and Amy Sangaline, a sexual abuse consultant. The mother testified that on April 12, 2007, Miranda disclosed the abuse to her, but that she did not immediately go to the police. She testified that, instead, she left the children in respondent’s care while she went to work, after which she spent the entire night out drinking with friends. The mother conceded that it was not until three days later, on April 17, 2007 — the date that respondent filed a petition for custody — that she brought the children to the police station with respect to the allegations of abuse disclosed to her by Miranda. Finally, with respect to Miranda’s allegations of sexual abuse, the mother admitted to telling April that if they did not go to the police station respondent would get custody.
Through Yuille’s testimony respondent attempted to discredit the method by which Miranda was interviewed at the police station, giving particular emphasis to the fact that such interviews were not videotaped. Additionally, Yuille highlighted the lack of detail and inconsistencies in Miranda’s various recollections, theorizing that such inconsistencies in a child’s statements are indicative that the abuse did not happen, the abuse did happen
Sangaline, who interviewed the mother and children shortly after the sexual abuse report was filed, reported that Miranda first disclosed that respondent “touched [her] in a priv[ate] spot” when she was two or three years old, and then again when she was six or seven, the latter incident occurring in the living room. In a second interview, Miranda disclosed that respondent had touched her on three separate occasions. Finally, respondent denied ever having inappropriately touched Miranda, and testified to, among other things, the mother’s alcohol relapse shortly before the sexual abuse allegations, and to specifically overhearing the mother encouraging Miranda to “say that [respondent] touched you, you need to tell me he touched you, say that he touched you.”
The attorney for Miranda and April then presented the testimony of, among other witnesses, Eileen Treacy, a psychologist, who testified about “confabulation” in sexual abuse cases, “when a memory is implanted” and is not an independent recollection of the event. Treacy explained that it was not unusual for victims of sexual abuse to both love and hate their abuser, as is the. case with Miranda, and that in coached cases of abuse— one where the abused child is instructed what to say by the parent alleging the abuse — the child tends to express only hate for the alleged abuser. Treacy opined that Miranda’s willingness to visit with respondent and to blame the mother for falsely informing the court that she had no desire to do so was evidence that this was not a coached case. Treacy also opined that excessive public masturbation indicates that a child may be “over-sexualized,” and that Miranda’s spontaneous description of respondent’s touch as “relaxing” is a positive sensory detail that would enhance her level of conflict in disclosing the abuse.
In its determination, Family Court acknowledged the mother’s possible ulterior motives for disclosing that Miranda had been sexually abused, and took note of her previous untruths, including her attempt to manipulate a drug test. However, Family
Respondent’s remaining contentions, including that Treacy was not formally certified as an expert witness (see Matter of Kaitlyn R.,
Spain, J.P., Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed, without costs.
Notes
. Respondent has failed to address Family Court’s determination of neglect in his brief and, therefore, has abandoned any challenge with respect thereto (see Country Club Partners, LLC v Goldman,
. Miranda’s and April’s testimony was unsworn, held in camera, outside the presence of respondent or the mother, but subject to cross-examination by counsel. “[T]his type of testimony taken at the fact-finding stage of a Family Ct Act article 10 proceeding is fundamentally different from Lincoln testimony and is not entitled to the protections afforded by Lincoln” (Matter of Justin CC. [Tina CC.],