In re Arielle LL.

Appellate Division of the Supreme Court of New York

In re Arielle LL.

294 A.D.2d 676, 741 N.Y.S.2d 339, 2002 N.Y. App. Div. LEXIS 4720

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 9, 2002

StatusPublished

Cited by6 cases

This text of 294 A.D.2d 676 (In re Arielle LL.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Arielle LL., 294 A.D.2d 676, 741 N.Y.S.2d 339, 2002 N.Y. App. Div. LEXIS 4720 (N.Y. Ct. App. 2002).

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Opinions

Peters, J.

Appeal from an order of the Family Court of Chemung County (Frawley, J.H.O.), entered October 27, 2000, which partially granted petitioner’s application, in a proceeding pursuant to Family Court Act article 10, and adjudicated Arielle LL. to be an abused child.

Arielle LL. (born in 1992) resided with her great aunt and visited with her mother on weekends. While Arielle was at her mother’s residence on April 1, 2000, Arielle’s mother left the residence; Arielle remained with some of her siblings and respondent, her mother’s paramour. Upon returning to her great aunt’s home at the end of the weekend, Arielle disclosed that while her mother was out of the residence, respondent inserted his finger into her vagina.

On May 25, 2000, petitioner filed a petition in Family Court alleging abuse and neglect against both Arielle’s mother and respondent. The petition against respondent proceeded to a hearing at which testimony was received from the police investigator who interviewed Arielle following her initial disclosure, the child protective caseworker who interacted with her, Arielle’s great aunt and Arielle herself, who testified in chambers with all attorneys present. Petitioner also introduced respondent’s written statement into evidence in which he admitted that he was highly intoxicated at the time of the alleged abuse and, while denying he engaged in sexual conduct with Arielle, admitted that he could have “done it to Arielle by accident [ly]” thinking it was Arielle’s mother. He reasoned that he “would never have guessed that it was Arielle, especially after being as drunk as I was.”

Respondent did not testify. Notably, Arielle’s mother testi[677]*677fled on his behalf. She explained that Arielle had been previously abused by a babysitter with whom she had purportedly watched adult films and was thereafter “caught” by respondent watching such films. She further testified that the child had difficulties in school and was not always truthful. On cross-examination, Arielle’s mother admitted that although she believed Arielle’s disclosure concerning abuse by the babysitter, she did not believe Arielle’s disclosure concerning respondent. However, she did confirm Arielle’s statements that respondent had walked around the house naked until a talk from Arielle’s great aunt precipitated the purchase and defendant’s use of boxer shorts.

Upon the testimonial and documentary evidence presented, Family Court concluded that petitioner had sustained its burden of proving, by a preponderance of the evidence, that Arielle had been sexually abused by respondent. While acknowledging the testimony indicating that Arielle had lied when she was accused of stealing, the court focused on the consistent nature of her disclosures to her great aunt, the police investigator and the child protective caseworker, all of which was now buttressed by Arielle’s own testimony. Family Court found her to be a coherent and competent witness who understood the difference between the truth and a lie. In addition, Family Court relied upon the statement that respondent provided to the police which offered less than an unequivocal denial of the allegations.

Respondent’s sole assertion on appeal is that Family Court’s finding of sexual abuse is against the weight of the evidence. We disagree. Respondent did not testify, “thereby permitting Family Court to draw the strongest inference against him as the opposing evidence would allow” (Matter of Jared XX., 276 AD2d 980, 983). Working from this inference and considering respondent’s written statement and Arielle’s in camera testimony,

* we find sufficient corroboration of her previous out-of-court statements (see, Matter of Christina F., 74 NY2d 532, 534; Matter of Jamie EE., 249 AD2d 603, 605). To be sure, the record contains some evidence that Arielle would lie in certain situations. This evidence, combined with the other testimonial and documentary evidence, merely presented a credibility issue for Family Court to resolve. According great deference, as we must, to those factual findings made by a court which had the advantage of directly observing the demeanor of all witnesses who testified, we can find no basis upon which to disturb the determination rendered since we [678]*678find it to be supported by a sound and substantial basis in the record (see, Matter of Akia KK., 282 AD2d 839, 840; Matter of Nathaniel TT., 265 AD2d 611, 614, lv denied 94 NY2d 757; Matter of Angelina AA., 211 AD2d 951, 952, lv denied 85 NY2d 808).

Rose and Lahtinen, JJ., concur.

The format of the child’s testimony is not challenged on this appeal.

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Peters, J.

Appeal from an order of the Family Court of Chemung County (Frawley, J.H.O.), entered October 27, 2000, which partially granted petitioner’s application, in a proceeding pursuant to Family Court Act article 10, and adjudicated Arielle LL. to be an abused child.

Arielle LL. (born in 1992) resided with her great aunt and visited with her mother on weekends. While Arielle was at her mother’s residence on April 1, 2000, Arielle’s mother left the residence; Arielle remained with some of her siblings and respondent, her mother’s paramour. Upon returning to her great aunt’s home at the end of the weekend, Arielle disclosed that while her mother was out of the residence, respondent inserted his finger into her vagina.

On May 25, 2000, petitioner filed a petition in Family Court alleging abuse and neglect against both Arielle’s mother and respondent. The petition against respondent proceeded to a hearing at which testimony was received from the police investigator who interviewed Arielle following her initial disclosure, the child protective caseworker who interacted with her, Arielle’s great aunt and Arielle herself, who testified in chambers with all attorneys present. Petitioner also introduced respondent’s written statement into evidence in which he admitted that he was highly intoxicated at the time of the alleged abuse and, while denying he engaged in sexual conduct with Arielle, admitted that he could have “done it to Arielle by accident [ly]” thinking it was Arielle’s mother. He reasoned that he “would never have guessed that it was Arielle, especially after being as drunk as I was.”

Respondent did not testify. Notably, Arielle’s mother testi[677]*677fled on his behalf. She explained that Arielle had been previously abused by a babysitter with whom she had purportedly watched adult films and was thereafter “caught” by respondent watching such films. She further testified that the child had difficulties in school and was not always truthful. On cross-examination, Arielle’s mother admitted that although she believed Arielle’s disclosure concerning abuse by the babysitter, she did not believe Arielle’s disclosure concerning respondent. However, she did confirm Arielle’s statements that respondent had walked around the house naked until a talk from Arielle’s great aunt precipitated the purchase and defendant’s use of boxer shorts.

Upon the testimonial and documentary evidence presented, Family Court concluded that petitioner had sustained its burden of proving, by a preponderance of the evidence, that Arielle had been sexually abused by respondent. While acknowledging the testimony indicating that Arielle had lied when she was accused of stealing, the court focused on the consistent nature of her disclosures to her great aunt, the police investigator and the child protective caseworker, all of which was now buttressed by Arielle’s own testimony. Family Court found her to be a coherent and competent witness who understood the difference between the truth and a lie. In addition, Family Court relied upon the statement that respondent provided to the police which offered less than an unequivocal denial of the allegations.

Respondent’s sole assertion on appeal is that Family Court’s finding of sexual abuse is against the weight of the evidence. We disagree. Respondent did not testify, “thereby permitting Family Court to draw the strongest inference against him as the opposing evidence would allow” (Matter of Jared XX., 276 AD2d 980, 983). Working from this inference and considering respondent’s written statement and Arielle’s in camera testimony,

* we find sufficient corroboration of her previous out-of-court statements (see, Matter of Christina F., 74 NY2d 532, 534; Matter of Jamie EE., 249 AD2d 603, 605). To be sure, the record contains some evidence that Arielle would lie in certain situations. This evidence, combined with the other testimonial and documentary evidence, merely presented a credibility issue for Family Court to resolve. According great deference, as we must, to those factual findings made by a court which had the advantage of directly observing the demeanor of all witnesses who testified, we can find no basis upon which to disturb the determination rendered since we [678]*678find it to be supported by a sound and substantial basis in the record (see, Matter of Akia KK., 282 AD2d 839, 840; Matter of Nathaniel TT., 265 AD2d 611, 614, lv denied 94 NY2d 757; Matter of Angelina AA., 211 AD2d 951, 952, lv denied 85 NY2d 808).

Rose and Lahtinen, JJ., concur.

The format of the child’s testimony is not challenged on this appeal.

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294 A.D.2d 676, 741 N.Y.S.2d 339, 2002 N.Y. App. Div. LEXIS 4720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-arielle-ll-nyappdiv-2002.

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