## Facts

- Roy T., Jr., about three-and-a-half years old, lived with his grandmother, Doris T., under a Family Court order granting Doris temporary custody and placing the matter under county agency supervision.
- The same order allowed Roy’s father, Roy T., Sr., to have court-ordered visitation.
- After a June 2, 1984 visitation, the father returned Roy later that evening; there was no discussion about the visit and the father did not mention any injury.
- The next morning, while preparing to bathe Roy, Doris observed several marks on Roy’s chest and stomach.
- When Doris asked about the marks, Roy stated that his father burned him with a cigarette.
- Doris brought Roy to a pediatrician, who examined him a few days later.
- The pediatrician observed five circular lesions on Roy’s stomach; the lesions had blistered and scabbed but were healing properly and did not require treatment.
- The pediatrician opined the injuries were consistent with second-degree burns caused by a hot object about the size of the lesions, and that scars might remain visible for up to two years.
- The pediatrician also opined that the injuries did not create a substantial risk of protracted disfigurement or protracted impairment of physical or emotional health.
- On June 7, 1984, Doris overheard the father speaking to Roy outside her residence and heard him say the burns were an “accident.”
- A caseworker visited and discussed the burns with Roy and Doris.
- The Monroe County Department of Social Services filed an Article 10 petition alleging that Roy was an abused (and also neglected) child.
- At the fact-finding hearing, the court conducted a preliminary inquiry and received Roy’s unsworn testimony.
- Roy testified that the father was smoking while Roy lay in the father’s lap, the father blew smoke in Roy’s face, Roy tried to grab the cigarette, and the father intentionally burned him; Roy described the incident as extremely upsetting and something he would remember.
- The father testified that the burns happened accidentally when Roy grabbed the cigarette and it fell onto Roy, and the father claimed he acted reasonably.

## Issues

1. Whether Roy’s out-of-court statements describing the burning were admissible under Family Court Act § 1046(a)(vi), and whether there was sufficient corroboration to permit a fact-finding.
2. Whether the court could receive Roy’s unsworn testimony given his age and understanding.
3. Whether the father’s conduct, as proven at the hearing, constituted “abuse” under Family Court Act § 1012(e)(i) despite the pediatrician’s view that the injuries did not present a substantial risk of protracted disfigurement or protracted impairment of health.

## Decision

- The court admitted Roy’s out-of-court statements under Family Court Act § 1046(a)(vi), subject to the statutory corroboration requirement.
- The court exercised its discretion to receive Roy’s unsworn testimony after examining his ability to distinguish truth from falsehood and his understanding of the duty to tell the truth.
- The court found Roy’s account credible and found that the burns were intentionally inflicted, rejecting the father’s accident explanation.
- The court found corroboration for Roy’s statements in the medical evidence describing multiple circular burn lesions consistent with contact from a hot object, along with the surrounding circumstances, including the father’s “accident” statement overheard by the grandmother.
- The court sustained the petition on the ground that the father’s intentional cigarette burns constituted abuse under Family Court Act § 1012(e)(i), even though the pediatrician did not believe the injuries met the statutory threshold.

## Legal Principles

- In Article 10 proceedings, a child’s out-of-court statements relating to abuse or neglect may be admitted under Family Court Act § 1046(a)(vi), but a fact-finding may not rest on those statements unless they are corroborated.
- Corroboration under § 1046(a)(vi) may come from physical evidence and medical proof consistent with the child’s account, as well as circumstantial proof and the respondent’s statements.
- Although unsworn testimony by a child is generally not received in ordinary civil trials, Family Court may dispense with an oath for a minor and accept unsworn testimony after a threshold inquiry into the child’s understanding of truth-telling.
- Whether particular conduct and injuries satisfy the statutory definition of “abuse” under Family Court Act § 1012(e)(i) is a legal determination for the court based on the full record, not solely on a medical witness’s characterization of the risk of long-term harm.
- Intentional infliction of burn injuries on a young child by a parent during visitation can support a finding of abuse when proven by credible testimony and corroborating evidence.

## Conclusion

In *In re Roy T.*, the Family Court accepted a young child’s unsworn testimony and admitted the child’s prior statements under the Article 10 child-hearsay rule, found adequate corroboration through medical and circumstantial evidence, credited the child’s account that the father intentionally burned him with a cigarette, and sustained the petition by finding that the intentional burns constituted abuse under the Family Court Act.


In re Roy T., 126 Misc. 2d 172, 481 N.Y.S.2d 257 (1984)