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Respondent is the mother of the three subject children

Respondent is the mother of the three subject children. Prior to the commencement of this proceeding, all three children resided in Brooklyn with respondent and her husband. The eldest son was born in the Dominican Republic. Respondent moved to the United States when he was about one year old. The son remained in the Dominican Republic where he lived with a paternal aunt and his paternal grandmother. His mother visited once each year and he spoke to her on the telephone on weekends. When he was 12 years old, his paternal aunt got married and moved to Florida. Thereafter, he moved to the United States. After his arrival, he lived with members of his extended family. In early 2007, he moved to New York to live with his mother, her husband and his two half-siblings.

A Queens County Criminal attorney said that since the petition was filed, the son has been placed with Mercy First. His father resides in the Dominican Republic. Since approximately one month after the filing of the petition, his other two siblings have been temporarily released to their non-respondent father, who lives with his wife in New Jersey.

The Child Services and the Attorney for the children seek a finding of sexual abuse against respondent mother based on sex misconduct, rape in the second degree, rape in the third degree and sexual abuse in the third degree. They assert that the evidence establishes that she had sexual intercourse with her 14-year-old son willingly and voluntarily. They reject her claim that she was raped. They assert that there is no evidence of forcible compulsion since there is no indication that the son used physical force or a threat to compel his mother to submit to sexual intercourse. They also assert that there is no evidence that son’s actions placed respondent in fear that she or someone else would suffer any harm — let alone immediate kidnapping, serious physical injury or death. They contend that her testimony in this regard is inconsistent and wholly inadequate. They contend that respondent acquiesced in Wesley’s conduct and that she never expressed a lack of consent that would have been understandable to a reasonable person. The Child Services and the Attorney for the son urge the Court to infer sexual gratification from the nature of the acts themselves.

Finally, they emphasize that since the son was 14 years old, he was legally incapable of consenting and that it is, therefore, irrelevant whether he initiated the sexual contact or not. It also notes that other courts have uniformly rejected claims by adults who seek to escape liability for sexual activity with minors by asserting that the minors were, in fact, the aggressors.

Family Court Act § 1012 (e) (iii) defines a sexually abused child as a child less than 18 years of age whose parent or other person legally responsible for his care commits, or allows to be committed an offense against such child defined in article 130 of the Penal Law; or allows, permits or encourages such child to engage in any act described in §§ 230.25, 230.30 and 230.32 of the Penal Law; or commits incest in the first, second or third degree. Under Family Court Act § 1012 (e) (iii), it is unnecessary to allege or prove harm or threatened harm to the child.

Where sexual abuse or forcible touching is alleged, it is necessary to prove that respondent intended to gratify the sexual desire of either party. There is no requirement that actual gratification occur, but only that the touching be for that purpose. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing. Because the question of gratification is a subjective one, this element may be inferred from respondent’s conduct or from the acts themselves.

Respondent asserts that she did not consent to having sexual relations with her son and that he raped her. However, neither the applicable law nor the facts adduced at fact-finding, support respondent mother’s contention.

The Penal Law defines “lack of consent” for purposes of a sex offense. It establishes that a “lack of consent” results from “forcible compulsion” or “incapacity to consent.” In addition, the statute provides that where the offense charged is sexual abuse, “lack of consent” can be established by any circumstances indicating that “the victim did not expressly or impliedly acquiesce in the actor’s conduct.” Finally, where the offense charged is rape in the third degree, “lack of consent” can be established by any circumstances indicating that “the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent under all the circumstances.”

The Court finds that respondent voluntarily engaged in sexual relations with her son although she had the ability to stop him at any time. Her subjective belief that she did not consent is insufficient, without more, to establish that she did not expressly and impliedly acquiesce in Wesley’s conduct. It is likewise insufficient to show a clear expression of lack of consent that would be understandable to a reasonable person. Moreover, absent expert testimony, her claim that she was “in shock” and “out of sync” is manifestly insufficient to establish a defense.

Family Court Act § 1046(a)(i) provides that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of the respondent.” Even in the absence of direct evidence of abuse or neglect of the other children, a derivative finding is warranted where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care

Depending on the nature of the underlying abuse or neglect, the court may make a finding of either derivative neglect or derivative abuse. A finding of derivative neglect is warranted where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment and fundamental flaw in respondent’s understanding of the duties of parenthood as to place the non-target children’s physical, mental or emotional condition at substantial risk of becoming impaired. Where, however, the evidence as to the directly abused child demonstrates such impaired parental judgment that it creates a substantial risk of protracted impairment to the non-target children’s physical or emotional health, a finding of derivative abuse is warranted.

Although the statute requires that evidence as to the abuse of one child be considered on the issue of the abuse or neglect of other children in the home, such evidence is not conclusive and does not establish a prima facie case of abuse or neglect as to the other children. The determinative factor remains whether the nature of the underlying misconduct, notably its duration and the circumstances surrounding its commission, evidences such a fundamental flaw in respondent’s understanding of the duties of parenthood that it can reasonably be concluded that the condition still exists.

After considering these criteria in light of the facts at bar, the Court enters findings of derivative neglect against respondent for the other children. These findings are based on the evidence of respondent’s sexual abuse of the son and her ongoing refusal to accept responsibility for her actions, which demonstrate impaired parental judgment to such an extent that it placed the non-target children’s physical, mental or emotional condition at substantial risk of becoming impaired.

In reaching this determination, the Court has carefully considered the order and decision of the Appellate Division in a case law, and has concluded that neither requires a different result. It is the view of this Court that the case was intended to resolve only those issues raised and decided during the Family Court Act § 1028 hearing — not to bind the Court to a particular result post-fact-finding. This view is supported by basic principles relating to appellate practice, including the general rule that matters which were not argued or considered on a prior appeal have no preclusive effect. This principle rests on the assumption that appellate courts adjudicate cases only on the grounds specifically raised and considered by the trial court. As a result, a prior decision of an appellate court establishes law of the case, binding in a subsequent proceeding, only on questions which were actually previously raised and previously decided.

These rules apply with particular force where, as here, the prior appeal involved a different legal issue, different witnesses and a different evidentiary standard. In addition, it involved an appeal from a hearing where hearsay was admissible and respondent did not testify. The limited issue that was actually raised and decided in said case was whether the two younger children would be at imminent risk if they were returned to respondent pending the conclusion of the fact-finding hearing. In answering that question in the affirmative, the Appellate Division, Second Department did not determine that the two younger children were derivatively abused since that issue was not actually raised, considered or decided by the order appealed from.

In reaching this conclusion, the Court has also considered prior case law and that the Appellate Division, Second Department has upheld derivative neglect findings— rather than findings of derivative abuse — under the circumstances presented here. Specifically, the Court has affirmed such findings where, as here, a parent commits an act of sexual abuse against one child while the other children were not present.

For each of the forgoing reasons, the Court Ordered, that a finding of sexual abuse is entered against respondent as to the subject child, based on rape in the second degree; and it is further ordered that a finding of derivative neglect is entered against respondent as to the 2 subject children; and it is further Ordered that the allegations of alcohol abuse are dismissed since the evidence fails to establish that respondent repeatedly misuses alcoholic beverages to the extent that it caused a substantial state of stupor, unconsciousness, intoxication, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality.

Sexual abuse usually occurs when there is no proper guidance from parents. That is, when these parents neglect their child and just let them live in their own ways. Here in Stephen Bilkis and Associates, we help these abused and neglected children to file the necessary action through our Queens County Criminal lawyers. In case of sexual assault and abuses, our Queens County Sex Crimes attorneys will take care of your case. Entrust your case with us, we are here to help you.

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