In the Matter of CORY O.,Respondent,vMEMORANDUM AND ORDERKATIE P.,Appellant.(And Five Other Related Proceedings.)_____________________________________Calendar Date: April 27, 2018Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.__________William V. O’Leary, Albany, for appellant.Michelle I. Rosien, Philmont, for respondent.Alexander W. Bloomstein, Hillsdale, attorney for thechildren.__________Mulvey, J.Appeal from an order of the Family Court of Greene County(Wilhelm, J.), entered April 14, 2016, which, among other things,granted petitioner’s application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody andvisitation.Petitioner (hereinafter the father) and respondent(hereinafter the mother) are the parents of two daughters (bornin 2011 and 2013). In March 2015, the parties stipulated to anaward of joint legal custody, with the mother having primaryphysical custody and the father receiving scheduled parentingtime. Seven days later, the father filed a modification petitionseeking sole custody of the children based upon allegations thatthe mother’s paramour, whom she later married (hereinafter thestepfather), had sexually abused the older child. That same day,Family Court awarded the father temporary physical custody andtemporarily suspended the mother’s visitation. During asubsequent court appearance, Family Court granted the mothersupervised visitation, designating the maternal grandfather assupervisor. Following a fact-finding hearing, Family Courtgranted the father’s petition, awarded him sole legal andphysical custody of the children and provided supervisedvisitation to the mother for two hours each week. The motherappeals.The older child’s out-of-court statements concerning thesexual abuse perpetrated upon her by the stepfather did notconstitute impermissible hearsay. Where, as here, a child’sout-of-court statements relate to abuse or neglect, suchstatements are admissible in a Family Ct Act article 6 proceedingso long as they are sufficiently corroborated (see Matter ofHamilton v Anderson, 143 AD3d 1086, 1087 [2016]; Matter ofLeighann W. v Thomas X., 141 AD3d 876, 878 [2016]). “Therelatively low degree of required corroboration may be providedby ‘[a]ny other evidence tending to support the reliability ofthe [child's] statements’” (Matter of Hamilton v Anderson, 143AD3d at 1087-1088, quoting Family Ct Act § 1046 [a] [vi]; seeMatter of Kimberly CC. v Gerry CC., 86 AD3d 728, 730 [2011]).While the mere repetition of an accusation does not, by itself,provide sufficient corroboration (see Matter of Nicole V., 71NY2d 112, 124 [1987]; Matter of Dylynn V. [Bradley W.], 136 AD3d1160, 1162 [2016]), “some degree of corroboration can be found inthe consistency of the out-of-court repetitions” (Matter ofJoshua UU. [Jessica XX.--Eugene LL.], 81 AD3d 1096, 1098 [2011];see Matter of Kimberly CC. v Gerry CC., 86 AD3d at 730). Proofof the abuse of another child can also provide the requisitecorroboration (see Family Ct Act § 1046 [a] [i], [vi]; Matter ofOlivia C. [Scott E.], 97 AD3d 910, 912 [2012], lv denied 19 NY3d814 [2012]). The sufficiency and “reliability of thecorroboration, as well as issues of credibility, are mattersentrusted to the sound discretion of Family Court and will not bedisturbed unless clearly unsupported by the record” (Matter ofJustin CC. [Tina CC.], 77 AD3d 1056, 1057 [2010], lv denied 16NY3d 702 [2011]; see Matter of Leighann W. v Thomas X., 141 AD3dat 878; Heather B. v Daniel B., 125 AD3d 1157, 1158 [2015]).The maternal aunt testified that, while babysitting thechildren in February 2015, the older child disclosed that thestepfather comes into her room in the middle of the night and“touches in [her] butt.” The child also revealed the sexualabuse to the father, specifically stating that, while she waslocked in her room, the stepfather would pull back the covers andreach into her underwear. The maternal aunt described changes inthe older child’s behavior that coincided with the time frame inwhich the alleged sexual abuse occurred, explaining that thechild, who used to be happy and playful, became “unsociable” and“scared,” as if something was bothering her. A therapist whomthe older child began seeing following the disclosures testifiedthat the child was “very distant,” “detached” and “withdrawn”during their interactions and opined that the child exhibitedbehavior that was consistent with that of a four-year-old who mayhave experienced trauma. Further, a woman whose father hadpreviously lived with the stepfather provided detailed andgraphic testimony of her own sexual abuse at the hands of thestepfather when she was a young girl. During interviews with theState Police, both this woman as well as her sister confirmedthat they had been sexually abused by the stepfather when theywere younger. In view of this proof, and according due deferenceto Family Court’s factual findings and credibility assessments,we conclude that the older child’s statements were adequatelycorroborated (see Heather B. v Daniel B., 125 AD3d at 1158;Matter of Lori DD. v Shawn EE., 100 AD3d 1305, 1306-1307 [2012];Matter of Joshua UU. [Jessica XX.---Eugene LL.], 81 AD3d at1098-1099).We further find a sound and substantial basis in the recordfor Family Court’s decision to impose supervised visitation.Initially, while Family Court made no explicit findings as towhether the father demonstrated a change in circumstances, thereis ample support in the record for such a determination,including the sufficiently corroborated evidence of thestepfather’s sexual abuse of the older child and the undisputedfact that the mother married the stepfather after becoming awareof the allegations against him (see Matter of Kevin F. v BettyE., 154 AD3d 1118, 1121 [2017]). Turning to the best interestsanalysis, we have repeatedly recognized that “supervisedvisitation may be appropriate if unsupervised visitation would bedetrimental to the child[ren]‘s safety because the parent iseither unable or unwilling to discharge his or her parentalresponsibility properly” (id. [internal quotation marks andcitations omitted]; see Matter of Adam E. v Heather F., 151 AD3d1212, 1214-1215 [2017]; Matter of Christine TT. v Gary VV., 143AD3d 1085, 1086 [2016]). “The determination of whethervisitation should be supervised is a matter left to FamilyCourt’s sound discretion and it will not be disturbed as long asthere is a sound and substantial basis in the record to supportit” (Matter of Vincente X. v Tiana Y., 154 AD3d 1113, 1114 [2017][internal quotation marks and citations omitted]; see Matter ofRaychelle J. v Kendell K., 121 AD3d 1206, 1207 [2014]).Here, the record is replete with conduct by the mother thatraises serious concerns regarding her judgment and demonstrates amarked inability or unwillingness to properly care for andprotect the children. Following her separation from the father,the mother moved into the home of a family member, wherein thechildren were exposed to unsafe living conditions as well as drugabuse. Although admittedly “skeptical” about doing so, themother then moved herself and the children into the residence ofthe stepfather, a man 30 years her senior, a mere six weeks aftermeeting him through an online dating website. She remained inthe home with the children despite receiving photographs from thestepfather holding a gun to his head and subsequently married himin the wake of the older child’s allegations of sexual abuse,which she continued to deny at trial. Tellingly, it was onlyafter she became the target of ongoing, “every other day”domestic violence at the hands of the stepfather that she choseto end this relationship. During the pendency of theproceedings, the mother began residing with a past boyfriend whohad a history of heroin addiction and had yet to completesubstance abuse treatment. As a result of this most recent move,the mother voluntarily reduced her visitation with the childrendue to the distance she would have to travel to exercise suchvisits. Testimony was also presented regarding the mother’sprior drug use, and the father articulated his concerns that themother was currently abusing drugs, including during periods ofsupervised visitation with the children. Further, although notdeterminative, the attorney for the children argues thatsupervised visitation is in the children’s best interests (seeMatter of Hoyt v Davis, 145 AD3d 1353, 1354 [2016]). On thisrecord, we discern no basis upon which to disturb Family Court’sdecision to restrict the mother’s parenting time to two hours ofweekly supervised visitation (see Matter of Adam E. v Heather F.,151 AD3d at 1214-1215; Matter of Christine TT. v Gary VV., 143AD3d at 1085; Matter of Keen v Stephens, 114 AD3d 1029, 1031[2014]).Finally, contrary to the mother’s contentions, FamilyCourt’s order does not compel her to undergo, or condition herright to visitation with the children upon submission to, a drugtest or a mental health evaluation (see Matter of Sweet v Passno,206 AD2d 639, 640 [1994]; see generally Matter of Saggese vSteinmetz, 83 AD3d 1144, 1145 [2011], lv denied 17 NY3d 708[2011]; Gadomski v Gadomski, 256 AD2d 675, 677 [1998]). Instead,the order merely provides that, should the mother choose toundergo a mental health evaluation and supply the court withproof of a negative hair follicle drug test, such wouldconstitute a change in circumstances for purposes of a subsequentmodification petition seeking additional parenting time with thechildren.McCarthy, J.P., Egan Jr., Devine and Rumsey, JJ., concur.ORDERED that the order is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
