                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: April 30, 2015                      517427
________________________________

In the Matter of DESTINY C. and
   Others, Alleged to be Abused
   and Severely Abused Children.

COLUMBIA COUNTY DEPARTMENT OF
   SOCIAL SERVICES,                           MEMORANDUM AND ORDER
                    Respondent;

GOLIATH C. et al.,
                    Appellants.
________________________________


Calendar Date:   March 25, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Lynch, JJ.

                               __________


      Alexander W. Bloomstein, Hillsdale, for Goliath C.,
appellant.

      Robert W. Linville, Public Defender, Hudson (Jessica D.
Howser of counsel), for Jeanine C., appellant.

      William J. Better, P.C., Kinderhook (N. Daniel Reeder of
counsel), for respondent.

     Karen Kimball, Wynantskill, attorney for the children.

                               __________


McCarthy, J.

      Appeal from an order of the Family Court of Columbia County
(Koweek, J.), entered August 8, 2013, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article 10
and Social Services Law § 384-b, to adjudicate respondents'
children to be abused, severely abused, derivatively abused
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and/or derivatively severely abused, and terminated respondents'
parental rights.

      Respondent Goliath C. (hereinafter the father) and
respondent Jeanine C. (hereinafter the mother) are the biological
parents of a boy born in 2002 (hereinafter the older boy), a boy
born in 2004 (hereinafter the middle boy), a girl born in 2006
(hereinafter the older girl), a girl born in 2010 (hereinafter
the baby girl) and a boy born in 2013 (hereinafter the baby boy).
Petitioner commenced the instant Family Ct Act article 10
proceeding, alleging that the father and the mother had each
engaged in sexual conduct with the older boy, the middle boy and
the older girl (hereinafter collectively referred to as the elder
children) so as to abuse and severely abuse the elder children
and so as to derivatively abuse and severely abuse the baby girl
and the baby boy. After a fact-finding hearing, Family Court
determined that the mother abused and severely abused each of the
elder children and derivatively abused and derivatively severely
abused the baby boy and baby girl, and that the father abused and
severely abused each of the elder children and derivatively
abused and derivatively severely abused the baby boy and baby
girl. After a dispositional hearing, the court ordered the
parents' respective parental rights terminated and freed each of
the children for adoption. Respondents appeal.

      The record supports Family Court's determinations that the
father abused and severely abused each of the elder children and
that the mother abused and severely abused the older girl. The
bulk of the evidence concerning the father's and the mother's
sexual abuse was in the form of out-of-court statements made by
the elder children, and such evidence is subject to a
corroboration requirement (see Matter of Nicole V., 71 NY2d 112,
116 [1987]; Matter of Lindsey BB. [Ruth BB.], 70 AD3d 1205, 1206
[2010]). Such corroboration of a child's out-of-court report of
abuse is satisfied by "[a]ny other evidence tending to support
the reliability of the [report]" (Family Ct Act § 1046 [a] [vi];
see Matter of Lindsey BB. [Ruth BB.], 70 AD3d at 1206). In other
words, "a relatively low degree of corroborative evidence is
sufficient" to satisfy this requirement (Matter of Joshua QQ.,
290 AD2d 842, 843 [2002]; accord Matter of Rebecca KK., 61 AD3d
1035, 1036, [2009]). As is particularly relevant here, evidence
                              -3-                517427

that corroborates the out-of-court abuse report of one child may
take the form of proof of abuse of another child (see Family Ct
Act § 1046 [a] [i], [vi]; Matter of Nicole V., 71 NY2d at 124).

      Specifically as to the older girl, corroborative evidence
included expert testimony that her disclosures and her advanced
sexual knowledge were consistent with those of a child victim of
sexual abuse. In addition, Family Court was presented with an
expert opinion that the scarring inside of the older girl's
vagina and the size of the opening of her rectum were both
consistent with those findings expected for a child who had been
sexually abused. This expert evidence, on its own, provided
sufficient corroboration for the older girl's reports (see Matter
of Rebecca KK., 61 AD3d at 1036).

      Otherwise, the elder children each made specific sexual
abuse allegations that were cross-corroborated. The older boy's
account that he had observed the father having sexual intercourse
with the older girl specifically corroborated the older girl's
account that such intercourse had taken place. The middle boy's
statement that the father put his tongue inside the older girl
corroborated the older girl's statement that the father put his
mouth on her private parts. Further, all three of the children
volunteered that they were recorded by camera during the sexual
abuse. More specifically, the older boy and the middle boy
independently described that the father, among others, used a red
camera to make such recordings. Both the older boy and the
middle boy separately volunteered that the father had kept films
of the abuse in a safe, but that the films were no longer in that
safe. In addition, both the older boy and the middle boy stated
that, at least on some occasions, the mother was present and
watching when the children were directed to have sexual
intercourse with one another. These details provided sufficient
corroboration for the elder children's reports of sexual abuse
(see Matter of Nicole V., 71 NY2d at 124; Matter of Ian H., 42
AD3d 701, 703 [2007], lv denied 9 NY3d 814 [2007]).

      Thus corroborated, the elder children's reports established
that the father's actions against the older girl amounted to, at
a minimum, incest in the first degree (see Penal Law § 255.27),
rape in the first degree (see Penal Law § 130.35 [3]), criminal
                              -4-                517427

sexual act in the first degree (see Penal Law § 130.50 [3]) and
aggravated sexual abuse in the first degree (see Penal Law §
130.70 [1] [c]). The same reports were sufficient to establish
that the father's actions against the older boy amounted to
aggravated sexual abuse in the first degree (see Penal Law §
130.70 [1] [c]). In addition, the reports established that, as
against the middle boy, the father committed incest in the first
degree (see Penal Law § 255.27), rape in the first degree (see
Penal Law § 130.35 [3]) and aggravated sexual abuse in the first
degree (see Penal Law § 130.70 [1] [c]).

      The commission of any of the aforementioned felony sex
offenses necessitates a finding that the father had severely
abused the child against whom he had committed the act (see
Social Services Law § 384-b [8] [a] [ii]). According appropriate
deference to Family Court's credibility determinations –
including its determination to discount the older boy's
subsequent recantation – the record amply supports its finding
that there was clear and convincing evidence that the father
directly abused and severely abused the elder children (see
Matter of Kimberly Z. [Jason Z.], 88 AD3d 1181, 1183 [2011];
Matter of Rebecca KK., 61 AD3d at 1036-1037).

      However, in regard to the mother, the record does not
support the conclusion that she directly severely abused the
older boy and the middle boy. Although there was no evidence
that the mother had physical sexual contact with any of the
children, the older boy reported that the mother was present
during some unspecified sexual abuse and that she had, on
occasion, encouraged the children to obey their father's
directives as to such abuse. The older boy also stated that, on
at least one occasion, the mother was one of the individuals who
directed the elder children to engage in sexual intercourse with
one another. The middle boy reported that the mother took
pictures of the elder children having sexual intercourse with one
another and that she was present and watching while the father
put his tongue inside the older girl.

      To support a finding of severe abuse, the proof had to
establish that the mother "knowingly allowed to be committed" any
one of the felony sex offenses listed in Social Services Law §
                              -5-                517427

384-b (8) (a) (ii). Although the reports would support a finding
that the mother used each of the elder children in a sexual
performance (see Penal Law § 263.05), that felony sex offense is
not a predicate for a finding of severe abuse (see Social
Services Law § 384-b [8] [a] [ii]; see generally Family Ct Act
§ 1012 [e] [iii]) and the sexual abuse against the older boy and
the middle boy in which the mother participated does not meet the
definition of any of the felony sex offenses listed in Social
Services Law § 384-b (8) (a) (ii). However, as to the older
girl, the middle boy's reports of sexual abuse, which, as
previously mentioned, were sufficiently corroborated, included
the assertion that the mother observed the father engaging in
oral sexual conduct with the older girl. Therefore, the record
supports the finding that the mother directly severely abused the
older girl by knowingly allowing the father to commit a criminal
sexual act in the first degree against the older girl (see Social
Services Law § 384-b [8] [a] [ii]; Penal Law § 130.50 [3]).

      Further, we see no reason to disturb Family Court's
findings that both parents derivatively severely abused the baby
boy and the baby girl, and we find ample support in the record to
conclude that the mother derivatively severely abused the older
boy and the middle boy. The mother's knowing allowance of the
father's commission of criminal sexual act in the first degree
and the father's commission of numerous of the felony sex
offenses described in Social Services Law § 384-b (8) (a) (ii)
"demonstrate[] such . . . impaired level[s] of parental judgment
as to create a substantial risk of harm for any child in [their
respective] care" (Matter of Ramsey H. [Benjamin K.], 99 AD3d
1040, 1042 [2012], lv denied 20 NY3d 858 [2013] [internal
quotation marks and citations omitted]; accord Matter of Branden
P. [Corey P.], 90 AD3d 1186, 1189 [2011]; see Matter of Ilonni I.
[Benjamin K.], 119 AD3d 997, 997-998 [2014], lv denied 24 NY3d
914 [2015]). Given this conclusion that each parent directly or
derivatively severely abused each of the children, the court did
not err in terminating the mother's and the father's parental
rights as to each child.

      Finally, neither the father nor the mother was deprived of
the effective assistance of counsel due to his or her respective
counsel's failure to call expert witnesses. Neither of them
                              -6-                  517427

identifies relevant experts who would have been willing to
testify in a manner helpful to either of their cases. Further,
neither the father nor the mother specifically alleges that his
or her respective counsel failed to investigate whether such
expert witnesses existed. Given that neither of them even offers
allegations that, if credited, would establish that the failure
to call an expert witness fell outside of the realm of legitimate
trial strategy, their arguments in this regard are without merit
(see Matter of Fay GG. [John GG.], 97 AD3d 918, 921 [2012];
Matter of James P., 17 AD3d 733, 735, [2005]; Matter of Jonathan
LL., 294 AD2d 752, 753 [2002]).

      Respondents' remaining contentions, to the extent not
addressed herein, are without merit.

     Lahtinen, J.P., Garry and Lynch, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as found that respondent
Jeanine C. severely abused Dakota C. and Damion C.; said
respondent is found to have derivatively severely abused said
children; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
