                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 31, 2016                    518174
________________________________

In the Matter of DYLAN R. and
   Others, Alleged to be Abused
   and Neglected Children.

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

JEREMY T.,
                    Appellant.
________________________________


Calendar Date:   February 10, 2016

Before:   Peters, P.J., Garry, Rose, Devine and Clark, JJ.

                             __________


     Diane Webster Brady, Plattsburgh, for appellant.

      Thomas H. Webb III, Clinton County Department of Social
Services, Plattsburgh, for respondent.

     Matthew Douthat, Plattsburgh, attorney for the children.

     Kristofer Michaud, Plattsburgh, attorney for the children.

                             __________


Devine, J.

      Appeals from two orders of the Supreme Court (Lawliss, J.),
entered December 17, 2013 and April 2, 2014 in Clinton County,
which granted petitioner's application, in a proceeding pursuant
to Family Ct Act article 10, to adjudicate respondent's children
and stepchildren to be abused and neglected.
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      Respondent is the biological father of two boys (born in
2010 and 2011) and the stepfather of two boys (born in 1997 and
1999). All four children resided with respondent and their
mother, respondent's wife, during the relevant period. The
stepchildren had previously been sexually abused by a relative
and, in August 2013, concerns arose that they were engaging in
sexually inappropriate behavior with one another. The
stepchildren were interviewed by law enforcement and child
protective officials and denied voluntarily engaging in sexual
acts with each other. They did reveal, however, that respondent
had forced them to engage in sexual activity and had sexually
abused them in 2010.

      Petitioner thereafter commenced this proceeding pursuant to
Family Ct Act article 10, alleging that respondent had abused and
neglected the four children. The proceeding was transferred from
Family Court to Supreme Court, which conducted a fact-finding
hearing. At the conclusion of the hearing, Supreme Court found
that respondent had abused and neglected the stepchildren, and
that he had derivatively abused and neglected his biological
children. An order was issued to that effect, followed by an
order determining that the safety and well-being of all the
children had been provided for by other means and that no
dispositional directives were necessary. Respondent now appeals
from both orders.

      We affirm. Petitioner bore the burden of establishing by a
preponderance of the evidence that respondent abused and
neglected the children (see Matter of Tiarra D. [Philip C.], 124
AD3d 973, 974 [2015]). The primary evidence of the abuse and
neglect consisted of "out-of-court statements made by [the
stepchildren], and such evidence is subject to a corroboration
requirement" (Matter of Destiny C. [Goliath C.], 127 AD3d 1510,
1511 [2015], lvs denied 25 NY3d 911 [2015]; see Family Ct Act
§ 1046 [a] [vi]; Matter of Nicole V., 71 NY2d 112, 124 [1987]).
"A relatively low degree of corroboration is required" (Matter of
Rawich v Amanda K., 90 AD3d 1085, 1087 [2011]), however, and
"independent statements [by children] requiring corroboration may
corroborate each other" (Matter of Nicole V., 71 NY2d at 124;
see Matter of Ian H., 42 AD3d 701, 703 [2007], lv denied 9 NY3d
814 [2007]).
                              -3-                518174

      Supreme Court heard the testimony of two individuals who,
on behalf of the State Police and petitioner, interviewed the
stepchildren. The stepchildren were interviewed separately, and
the testimony reveals that they were consistent in making
specific allegations of sexual abuse. The stepchildren told the
investigators that they had not voluntarily engaged in sexual
activity, and that the older stepson had only admitted to doing
so because respondent had badgered him at a family meeting with
their mother. Rather, the stepchildren agreed that respondent
had forced them to perform oral and anal sex acts on each other
while he watched and described how he had coached them to perform
those acts. The stepchildren also agreed that the younger
stepchild had been forced to perform oral sex on respondent in
the presence of the older stepchild. They further stated that
respondent showed them pornography, and respondent acknowledged
to investigators and others that he had shown the older stepchild
pornography.

      We are cognizant that "the reliability of the
corroboration, as well as issues of credibility, are matters
entrusted to the sound discretion of" Supreme Court (Matter of
Justin CC. [Tina CC.], 77 AD3d 1056, 1057 [2010], lv denied 16
NY3d 702 [2011]; see Matter of Tiarra D. [Philip C.], 124 AD3d at
974). Supreme Court did not abuse its discretion in finding that
the consistent statements of the stepchildren corroborated each
other, particularly in light of the admissions made by respondent
that he exposed one of the stepchildren to pornography
(see Matter of Nicole V., 71 NY2d at 124; Matter of Justin A.
[Derek C.], 133 AD3d 1106, 1108 [2015]) and the inference drawn
against respondent as a result of his failure to testify at the
fact-finding hearing (see Matter of Ian H., 42 AD3d at 703).1
Therefore, after giving due deference to Supreme Court's
credibility determinations, a sound and substantial basis in the
record supports its findings that respondent abused and neglected


    1
        Respondent argues that Supreme Court erred in drawing a
negative inference against him but, inasmuch as he failed to
object when the attorney for the stepchildren requested that the
inference be drawn, the issue is unpreserved for our review
(see Matter of Keara MM. [Naomi MM.], 84 AD3d 1442, 1444 [2011]).
                              -4-                518174

the stepchildren (see Family Ct Act § 1012 [e], [f]; Matter of
Destiny C. [Goliath C.], 127 AD3d at 1511-1512; Matter of Tiarra
D. [Philip C.], 124 AD3d at 974-975). Inasmuch as "respondent's
repeated sexual abuse of [the stepchildren] demonstrates such an
impaired level of parental judgment as to create a substantial
risk of harm for any child in his care, we [also] find no reason
to disturb the court's determination that he derivatively abused
and neglected the other" children (Matter of Ramsey H. [Benjamin
K.], 99 AD3d 1040, 1042 [2012], lv denied 20 NY3d 858 [2013]
[internal quotation marks, brackets and citations omitted]).

      Respondent further contends that he received the
ineffective assistance of counsel and, insofar as his contentions
relate to matters in the record, they primarily involve counsel
advising him not to testify and failing to call the stepchildren
to testify. With regard to the former, "the decision not to have
respondent testify certainly can be viewed as strategic in
nature" (Matter of Christopher W., 42 AD3d 692, 693 [2007]).
With regard to the latter, counsel in no way ignored the import
of the stepchildren's statements and, rather than risk placing
the stepchildren on the stand, counsel challenged their
credibility by vigorously cross-examining the investigators who
had interviewed them and probing for inconsistencies in their
statements. In short, when viewing counsel's performance in its
totality, and noting the absence of any alleged prejudice flowing
from that performance, we have no difficulty concluding that
respondent received meaningful representation (see Matter of
Julian P. [Colleen Q.], 129 AD3d 1222, 1224-1225 [2015]; Matter
of Daniel BB., 26 AD3d 687, 689 [2006]).

      Respondent's remaining contentions, to the extent that they
are properly before us, have been examined and found to be
lacking in merit.

     Peters, P.J., Garry, Rose and Clark, JJ., concur.
                        -5-                  518174

ORDERED that the orders are affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
