         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1135
CAF 10-02013
PRESENT: FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF LYDIA C.
---------------------------------------------
STEUBEN COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;                           MEMORANDUM AND ORDER

ALBERT C., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


ROSEMARIE RICHARDS, SOUTH NEW BERLIN, FOR RESPONDENT-APPELLANT.

ALAN P. REED, COUNTY ATTORNEY, BATH (MICHELLE A. COOKE OF COUNSEL),
FOR PETITIONER-RESPONDENT.

BONITA STUBBLEFIELD, ATTORNEY FOR THE CHILD, PIFFARD, FOR LYDIA C.


     Appeal from an order of the Family Court, Steuben County (Peter
C. Bradstreet, J.), entered September 13, 2010 in a proceeding
pursuant to Family Court Act article 10. The order, among other
things, adjudged that respondent abused the subject child.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In appeal No. 1, respondent father appeals from an
order determining, following a fact-finding hearing, that he sexually
abused the child who is the subject of these proceedings. In appeal
No. 2, the father appeals from an order granting petitioner mother
sole custody of the child and suspending his visitation with the
child. Contrary to the contention of the father in appeal No. 1,
Family Court properly denied his motion to dismiss the abuse petition
inasmuch as the out-of-court statements of the child were sufficiently
corroborated by other evidence tending to support their reliability
(see Family Ct Act § 1046 [a] [vi]; Matter of Nicole V., 71 NY2d 112,
117-118, rearg denied 71 NY2d 890; Matter of Nicholas J.R., 83 AD3d
1490, lv denied 17 NY3d 708; Matter of Colberdee C., 2 AD3d 1316).
Family Court has “ ‘considerable discretion in determining whether a
child’s out-of-court statements describing incidents of abuse have
been reliably corroborated and whether the record as a whole supports
a finding of abuse’ ” (Nicholas J.R., 83 AD3d 1490; see Colberdee C.,
2 AD3d 1316).

     Here, the out-of-court statements of the child were sufficiently
corroborated by the testimony of her therapists, who both opined that
the child’s behavior following the alleged abuse was consistent with a
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child who has been sexually abused (see Matter of Breanna R., 61 AD3d
1338, 1340; Matter of Yorimar K.-M., 309 AD2d 1148; cf. Matter of
Kalifa K., 37 AD3d 1180). Both of the child’s therapists also opined
that her out-of-court statements were credible (see Nicholas J.R., 83
AD3d 1490; Yorimar K.-M., 309 AD2d 1148; Matter of Victoria KK., 233
AD2d 801, 803), and those out-of-court statements were “ ‘consisten[t]
. . . [in] describing [the] sexual conduct’ ” (Yorimar K.-M., 309 AD2d
at 1149; see Nicholas J.R., 83 AD3d 1490). Further, the child’s out-
of-court statements were corroborated by the unsworn testimony that
she gave on cross-examination at the fact-finding hearing (see Matter
of Christina F., 74 NY2d 532, 535-537; Matter of Telsa Z., 71 AD3d
1246, 1249-1250; Matter of Elizabeth D., 139 AD2d 66, 67-70, appeal
dismissed 73 NY2d 871).

     The father further contends that the abuse petition should have
been dismissed because the evidence was insufficient to identify him
as the perpetrator of the alleged abuse. That contention, however, is
not preserved for our review inasmuch as the father failed to move to
dismiss the petition on that ground (see Matter of Syira W., 78 AD3d
1552). In any event, we conclude that Family Court’s finding of
sexual abuse is supported by the requisite preponderance of the
evidence (see Family Ct Act § 1046 [b] [i]; Nicholas J.R., 83 AD3d at
1490; see generally Matter of Tammie Z., 66 NY2d 1, 3).

     The father contends that the court erred in allowing petitioner
to present validation testimony, i.e., the testimony of the child’s
therapists, because those therapists were not identified as potential
witnesses in the abuse petition. That contention, however, is not
preserved for our review (see generally Matter of Brayanna G., 66 AD3d
1375, lv denied 13 NY3d 714) and, inasmuch as the abuse petition was
not included in the record on appeal, that contention is not properly
before us (see generally Matter of Jennifer O., 281 AD2d 937, lv
dismissed in part and denied in part 98 NY2d 666). In any event, the
father’s contention is without merit. Family Court Act § 1031 (a)
does not require petitioner to list all potential witnesses but,
rather, it requires petitioner to allege only those “facts sufficient
to establish that a child is an abused . . . child” (see Matter of
Roman, 94 Misc 2d 796, 798; cf. CPLR 3101 [d] [1] [i]; Family Ct Act §
1038 [d]). We have reviewed the father’s remaining contentions in
appeal No. 1 and conclude that none warrants reversal of the order.

     We reject the father’s contention in appeal No. 2 that the court
erred in suspending his visitation with the child. “ ‘Visitation
decisions are generally left to Family Court’s sound discretion,
requiring reversal only where the decision lacks a sound and
substantial basis in the record’ ” (Matter of Nicole J.R. v Jason
M.R., 81 AD3d 1450, 1451, lv denied 17 NY3d 701; see Fox v Fox, 177
AD2d 209, 211-212). Here, the court determined that the father
sexually abused the child (see e.g. Matter of Kimberly CC. v Gerry
CC., 86 AD3d 728, 729; Matter of Kole HH., 84 AD3d 1518, 1519-1520),
and the father refused to proceed with recommended sex offender
treatment and mental health counseling (see Matter of Telsa Z., 84
AD3d 1599, 1601-1602). Further, one of the child’s therapists opined
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                                                         CAF 10-02013

that any visitation between the father and the child would be
detrimental to the mental health of the child, and the child testified
during the fact-finding hearing that she does not want to see the
father or return to his home (see Veronica S. v Philip R.S., 70 AD3d
1459, 1460; Matter of Jeffrey L.J. v Rachel K.B., 42 AD3d 912, 913-
914; see generally Fox, 177 AD2d at 210).

     Contrary to the father’s further contention, the court did not
abuse its discretion in failing to order a child protective
investigation of the mother’s home pursuant to Family Court Act § 1034
(1) (b). Here, there was no indication in the petition or during the
proceedings that the child was abused, neglected or mistreated in the
mother’s home (see Matter of Corrigan v Orosco, 84 AD3d 955).




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
