In the Matter of MAKAYLA I.and Others, Alleged to beAbused and/or NeglectedChildren.SCHENECTADY COUNTY DEPARTMENTOF SOCIAL SERVICES,Respondent;CALEB K.,Appellant.(Proceeding No. 1.)_______________________________ MEMORANDUM AND ORDERIn the Matter of MAKAYLA I.and Others, Alleged to beAbused and/or NeglectedChildren.SCHENECTADY COUNTY DEPARTMENTOF SOCIAL SERVICES,Respondent;HAROLD J.,Appellant.(Proceeding No. 2.)(And Other Related Proceedings.)________________________________Calendar Date: May 1, 2018Before: Garry, P.J., McCarthy, Devine, Aarons and Pritzker, JJ.__________William V. O’Leary, Albany, for Caleb K., appellant.Matthew C. Hug, Albany, for Harold J., appellant.Christopher H. Gardner, County Attorney, Schenectady(Alexis M. Osborne of counsel), for respondent.Alexandra J. Buckley, Clifton Park, for Edward I.Patricia L.M. Countryman, Schenectady, attorney for thechildren.__________Pritzker, J.Appeals (1) from an order of the Family Court ofSchenectady County (Powers, J.), entered August 19, 2016, whichgranted petitioner’s applications, in two proceedings pursuant toFamily Ct Act article 10, to adjudicate the subject children tobe abused and/or neglected, and (2) from three orders ofprotection entered thereon.Respondent Caleb K. is the father of Annabella J. (born2009) and Caleb J. (born 2012), and the stepfather of Makayla I.(born 2004). Respondent Harold J. is Caleb K.’s father, and isthe biological grandfather of Annabella J. and Caleb J. and thestepgrandfather of Makayla I. In December 2013, petitionercommenced this Family Ct Act article 10 proceeding against CalebK., alleging that he allowed Harold J. to sexually abuse Makaylaand derivatively abused the other two children. Petitionerthereafter commenced a Family Ct Act article 10 proceedingagainst Harold J., alleging that he sexually abused Makayla andderivatively abused the other two children. After a fact-findinghearing, Family Court, in one order, held that Makayla was abusedby Harold J. and Caleb K., Annabella was abused by Caleb K. andderivatively abused by Harold J., and Caleb J. was derivativelyabused by both respondents. Following a dispositional hearing,the court issued three orders of protection barring Harold J.from having any contact with the children until their eighteenthbirthdays. Harold J. appeals the fact-finding order and theorders of protection. Caleb K. appeals the fact-finding orderonly.To establish sexual abuse in a Family Ct Act article 10proceeding, the petitioner is required to prove by apreponderance of the evidence that the respondent committed orallowed another to commit acts constituting crimes under PenalLaw article 130 (see Family Ct Act §§ 1012 [e] [iii] [A]; 1046[b] [i]; Matter of Brooke KK. [Paul KK.], 69 AD3d 1059, 1060[2010]). To that end, “Family Court’s findings and credibilitydeterminations are accorded great deference and will not bedisturbed unless they lack a sound and substantial basis in therecord” (Matter of Jade F. [Ashley H.], 149 AD3d 1180, 1182[2017] [internal quotation marks and citation omitted]; seeMatter of Penny Y. [Roxanne Z.], 129 AD3d 1117, 1118 [2015]).Here, petitioner’s proof included witnesses to whom bothMakayla and Annabella made unsworn statements. First, JoannaJohnson, a senior caseworker for petitioner, testified thatduring a November 2013 interview with Makayla, Makayla indicatedthat she had a secret she could not talk about becauserespondents would have to go to jail if she told anyone. Sheeventually indicated, however, through several drawings, that shehad sexual intercourse with Harold J. and that this was hersecret. Johnson testified that she asked Makayla if she knewwhat sex was, and Makayla not only demonstrated by moving amarker back and forth through her closed fingers, but alsoindicated that this is “what happened with the penis and vaginawhen her and [Harold J.] had sex.” Makayla also described HaroldJ. as her “boyfriend,” and explained that boyfriends andgirlfriends take part in activities that Harold J. told her notto talk about — she then wrote down the word “sex.” Johnson alsotestified regarding the details of the abuse as explained to herby Makayla. Specifically, Makayla relayed one incident whenCaleb K. walked in on Harold J. abusing Makayla, yelled at Harold-4- 523798523868J. and “spanked” Makayla as punishment for the incident. Makaylareferred to this incident as a “secret with daddy.”Johnson further testified that she interviewed Annabella inApril 2014 after receiving a report that Caleb K. had insertedhis finger in her vagina. According to Johnson, Annabella’sfoster mother reported Annabella “touch[ing] herself in amasturbating fashion” on numerous occasions. Thereafter, duringan interview with Annabella in April 2014, Annabella freelyrevealed that Caleb K. had put his finger in her vagina once whenshe was four years old.Julie Bailey, an expert in sex abuse treatment and a sexabuse therapist, also testified, and her evaluations of Makaylaand Annabella were submitted into evidence. With respect toMakayla, Bailey’s evaluation concluded that Makayla consistently– “over time and to multiple people” — described “genital togenital contact” with Harold J. and referred to this contact as“sex.” Bailey opined that Makayla’s level of sexual knowledgewas beyond that expected for a child of her age. Baileyultimately concluded that Makayla’s account of abuse satisfiedseveral criteria that were outlined in Bailey’s report and was,therefore, reliable. Moreover, Bailey determined that Makaylapresented in a manner consistent with children who are known tohave been sexually abused.Bailey also testified about Annabella. The record revealsthat Annabella’s account of the sexual abuse by Caleb K. toBailey was consistent with her disclosure to Johnson. InBailey’s evaluation of Annabella, Bailey concluded that, despitebeing unable to complete a reliability assessment due to heryoung age, Annabella’s presentation and behaviors were consistentwith that of young children who were victims of sexual abuse.Leslie Ann Ellis, a clinical case manager who worked withMakayla in 2013, also testified that, while driving her to anappointment one day, Makayla indicated that she had a secret withone of her family members that she could not tell because itwould result in that person going to jail. Later, Makayla toldEllis that she had promised Caleb K. that she would help him bykeeping a secret regarding Harold J. Makayla then stated that“she was going to be eight years pregnant,” which Ellis foundtroubling because she did not think a child of Makayla’s agewould “have that type of sex education about how one getspregnant.” Subsequently, in a May 2013 session, Ellis heardMakayla “making moaning, groaning sounds and sounds that sounded. . . like kissing.”Given this proof, we find that there is a sound andsubstantial basis in the record for concluding that Caleb K. andHarold J. sexually abused Annabella and Makayla, respectively,and that Caleb K. knew about Harold J.’s abuse of Makayla. Whilethe unsworn statements both children made to Johnson, Ellis and,most notably, Bailey were statutorily insufficient absentadditional corroborating proof establishing their reliability(see Family Ct Act § 1046 [a] [vi]; Matter of Jakob Z. [MatthewZ.---Mare AA.], 156 AD3d 1170, 1171 [2017]), this relatively lowevidentiary threshold was satisfied by Bailey’s expert conclusionthat Annabella’s and Makayla’s conduct was consistent withbehavior typically exhibited by victims of sexual abuse (seeMatter of Hadley C. [David C.], 137 AD3d 1524, 1526 [2016];Matter of Rawich v Amanda K., 90 AD3d 1085, 1087 [2011]). Basedupon this sufficient corroboration, we do not find that anydiscrepancies in Makayla’s and Annabella’s out-of-courtstatements as to time, place and manner negate the sound andsubstantial basis of Family Court’s findings (see generallyMatter of Miranda H.H. [Thomas HH.], 80 AD3d 896, 898-899[2011]). Moreover, it is well-settled that Family Court waspermitted to draw a negative inference from the failure of HaroldJ. and Caleb K. to testify at the fact-finding hearing (seeMatter of Nassau County Dept. of Social Servs. v Denise J., 87NY2d 73, 79 [1995]; Matter of William KK. [Samantha LL.], 146AD3d 1052, 1054 [2017]).Family Court’s conclusion that the children’s bestinterests would be served by precluding contact with Harold J.was clearly supported by a sound and substantial basis in therecord (Matter of Jamel HH. [Linda HH.], 155 AD3d 1379, 1380-1381[2017]; Matter of Lillian SS. [Brian SS.], 146 AD3d 1088, 1095[2017], lv denied 29 NY3d 992 [2017]). Given his sexual abuse ofa child under the age of 10, and his testimony at thedispositional hearing where he denied that abuse, the recordevinced a substantial risk that future contact with any of theyoung children would lead to new acts of sexual abuse (compareMatter of Merinda MM. [Sirena NN.], 143 AD3d 1095, 1097 [2016],lv denied 28 NY3d 910 [2016]; Matter of Antoinette LL. [RalphMM.], 135 AD3d 1015, 1015-1016 [2016]). However, given thefamilial relationships between Harold J. and the children,issuance of these orders until the children’s eighteenth birthdayraises additional issues.Family Ct Act § 1056 (4) provides that “[t]he court mayenter an order of protection[,] independently of any other ordermade under this part, against a person who was a member of thechild’s household or a person legally responsible . . . and whois no longer a member of such household at the time of thedisposition and who is not related by blood or marriage to thechild or a member of the child’s household. [Such] order ofprotection . . . may be for any period of time up to the child’seighteenth birthday.” Because Harold J. is the biologicalgrandfather of Annabella and Caleb J., the orders of protectionas to these children must be modified to reflect an expirationdate of September 27, 2017, which was one year from dispositionof the matter (see Family Ct Act § 1056 [1]; Matter of Collin H.,28 AD3d 806, 810 [2006]).The familial relationship between Makayla and Harold J.warrants slightly more analysis as Harold J. is not Makayla’sbiological grandfather, but rather is related to her through hisson’s marriage to Makayla’s mother. This raises the issue ofwhether a stepgrandparent is related to a stepgrandchild bymarriage for the purposes of Family Ct Act § 1056 (4). Weconclude that they are not. This conclusion is supported by thespecific language in the statute, “related by . . . marriage”(Family Ct Act § 1056 [4]), rather than the broader and moreinclusive concept of “affinity,” which is used elsewhere in theFamily Ct Act (cf. Family Ct Act § 812 [1] [a]). Further, astepgrandparent has no enforceable legal right to have contactwith a stepgrandchild as a stepgrandparent lacks standing topursue visitation (see Matter of Kevin B. v Zovania B., 158 AD3d555, 555 [2018]; Matter of BS v BT, 148 AD3d 1029, 1030 [2017];cf. Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1, 18 and n3 [2016]). Thus, although Family Ct Act § 1056 (4) limits theduration of orders of protection against a stepparent who isrelated to a child by and through his or her own marriage to thechild’s mother or father, these limitations do not apply to astepgrandparent, whose relationship to the child is attenuated.Therefore, because Harold J.’s relationship to Makayla is notestablished by his own marriage, but rather through his son’smarriage, it was statutorily permissible, in this regard, forFamily Court to issue an order of protection until Makayla’seighteenth birthday. Our analysis does not end here, however, asFamily Ct Act § 1056 (4) prohibits orders of protection until achild’s eighteenth birthday if the order is against someone whois related by blood or marriage to a member of the child’shousehold. Therefore, if, at the time of disposition, Makaylaresided in the same household as Annabella and Caleb J., theorder of protection as to Makayla could not exceed one year (seeFamily Ct Act § 1056 [4]; In the Matter of Nevaeh T. [AbreannaT.--Wilbert J.], 151 AD3d 1766, 1768 [2017]). Inasmuch as wecannot discern from the record whether this is the case, thematter must be remitted for the purpose of making thisdetermination.Garry, P.J., McCarthy, Devine and Aarons, JJ., concur.ORDERED that the order entered August 19, 2016 adjudicatingthe subject children to be abused and/or neglected is affirmed,without costs.ORDERED that the orders of protection are modified, on thelaw, without costs, by reversing so much thereof as set theexpiration dates of said orders as December 23, 2027, September29, 2030 and August 7, 2022 for Annabella J., Caleb J. andMakayla I., respectively; set the expiration date of the ordersas to Annabella J. and Caleb J. as September 27, 2017 and matterremitted to the Family Court of Schenectady County for furtherproceedings not inconsistent with this Court’s decision withregard to the expiration date of the order as to Makayla I.; and,as so modified, affirmed.ENTER:Robert D. MaybergerClerk of the Court
