In re Christina F.

548 N.E.2d 1294, 74 N.Y.2d 532, 549 N.Y.S.2d 643, 1989 N.Y. LEXIS 3348
CourtNew York Court of Appeals
DecidedNovember 30, 1989
StatusPublished
Cited by403 cases

This text of 548 N.E.2d 1294 (In re Christina F.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Christina F., 548 N.E.2d 1294, 74 N.Y.2d 532, 549 N.Y.S.2d 643, 1989 N.Y. LEXIS 3348 (N.Y. 1989).

Opinion

OPINION OF THE COURT

Kaye, J.

In a child protective proceeding under article 10 of the Family Court Act (the Child Protective Proceedings Act), a child’s out-of-court statements describing sexual abuse by her father may be corroborated by the child’s later cross-examined but unsworn in-court testimony, so as to support a fact finding of abuse.

This proceeding was instituted by the Onondaga County Department of Social Services Child Protective Division, seek[534]*534ing a finding that respondent had abused his daughter, Christina, then five years old, and that his son, Robert, age two, was in danger of being abused. At a fact-finding hearing, Detective Antonello of the County Sheriffs Department testified that, in an interview, Christina told him that respondent had done "bad things” to her — that he had awakened her, carried her from her bedroom downstairs to the living room, had her remove her clothing and touched her vagina, and also that she had seen him masturbating in the bathroom. Detective Antonello further testified that, when given anatomically correct dolls, Christina positioned them to indicate the contact she had described. Petitioner agency additionally offered the testimony of the mother and a police officer who had interviewed respondent. The officer testified that respondent told him of two occasions when Christina had grasped her father’s hand and placed it on her vagina. Two writings were received in evidence — a handwritten note of "apology” by respondent to Christina, and respondent’s affidavit describing the two hand-to-vagina contacts he said were initiated by the child.

As part of petitioner’s case, five-year-old Christina testified in Chambers. By agreement of the parties, the examination was conducted outside both parents’ presence, though their counsel attended. Without preliminary inquiry or objection, no oath was administered to the child. In extensive direct and cross-examination Christina testified that her father "did some bad things” to her, and she recounted — in greater detail, and with some inconsistency from her earlier reported statements —substantially the same incidents she had related to Detective Antonello. Testifying in his own behalf, respondent denied any abuse, specifically denied the incidents of which Christina spoke, and described the two hand-to-vagina contacts set forth in his affidavit.

Family Court concluded that Christina’s in-court testimony corroborated her earlier statements to Detective Antonello, and that this evidence constituted a prima facie case of child abuse under Family Court Act § 1046 (a) (vi). In accepting the testimony as sufficient corroboration, the court noted that it "had an opportunity in this case to make observations of the child as she told her story, and found that the child appeared credible * * * and thus now accepts such statements as corroboration sufficient under the statute.” (135 Misc 2d 495, 500.) The court further concluded from a review of the entire record that petitioner had established by a preponderance of the evidence that Christina was an abused child. The court [535]*535termed the child’s testimony credible and respondent’s testimony unpersuasive; it set out the evidentiary basis for its holding the child’s account derived from fact and not from her mother’s coaching; and it observed that "the variance between [respondent’s] version and the child’s [was] too great to be explained away by an inference from this record that the child had been coached to the extent that would have been necessary to enable her to sustain such an elaborate fabrication.” (Id., at 501.)

By stipulation, a dispositional order was entered releasing the children to the mother’s custody, under petitioner’s supervision, and providing for supervised visits by respondent for a period of 18 months, together with other relief. The Appellate Division unanimously affirmed, without opinion, citing in its entry Matter of Elizabeth D. (139 AD2d 66).

Since enactment of the Family Court Act, courts have struggled with the issue of corroboration (Matter of Christina F., 135 Misc 2d, at 498). In cases of sexual abuse of children in family settings — tragically today a major public concern — the issue of corroboration has been especially troubling. Such abuse typically occurs in secret with the child-victim as the only witness; the child may be reluctant or unable to testify; and erroneous dismissal of the petition can have disastrous consequences (Matter of Nicole V., 71 NY2d 112, 117; Matter of Tammie Z., 66 NY2d 1, 5; Matter of Elizabeth D., 139 AD2d 66, 69, supra). Consequently, whether the victim’s statements require corroboration, and what may serve as corroborative evidence (if required), often become questions of central significance.

This case calls upon us to determine one aspect of the issue, in a child protective proceeding. As the parties have posited the question, we are asked whether a child’s in camera unsworn but cross-examined testimony can be used to corroborate her previous out-of-court statements, to make a prima facie case of abuse, where there is no other corroborative evidence in the record. We conclude, like Family Court and the Appellate Division, that such use of the child’s testimony was permissible (see also, Matter of Elizabeth D., 139 AD2d 66, supra; Matter of Tina H., 123 AD2d 864).

As we recently noted in Matter of Nicole V. (71 NY2d, at 117, supra), a general objective of the Child Protective Proceedings Act was to alleviate certain difficulties inherent in proving the sexual abuse of children in family settings. In [536]*536particular, in 1985 the Legislature amended Family Court Act § 1046 (a) (vi) to make clear that the corroboration requirements of the criminal law are not applicable in article 10 proceedings, which are civil in nature (id., at 118; see also, Family Ct Act § 1012 [e] [iii]). Section 1046 (a) (vi) provides that, in any hearing under article 10, previous statements of the child relating to allegations of abuse shall be admissible, but are insufficient for a fact finding of abuse unless corroborated. The 1985 amendment of the section added its own broad definition of corroboration. Corroboration, for purposes of article 10 proceedings, is defined to mean "[a]ny other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision”. (Family Ct Act § 1046 [a] [vi].)

In determining whether the statute has been satisfied in this case, it is useful to return to the purpose of the corroboration requirement. Corroboration of a child’s out-of-court hearsay statements in child protective proceedings is needed not because the "statements of children are generally unreliable but because the out-of-court statements are hearsay and the statute requires some further evidence to establish their reliability.” (Matter of Nicole V., 71 NY2d, at 118, supra; see also, Matter of Lydia K., 67 NY2d 681.) Whether or not proffered corroborative testimony actually "tend[s] to support the reliability of the previous statements” in a particular case is a fine judgment entrusted in the first instance to the Trial Judges who hear and see the witnesses.

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Bluebook (online)
548 N.E.2d 1294, 74 N.Y.2d 532, 549 N.Y.S.2d 643, 1989 N.Y. LEXIS 3348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-christina-f-ny-1989.