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Family Court Act § 1012(e)(ii)


A Nassau Sex Crimes Lawyer said that, before the Court is an Article 10, child abuse and neglect proceeding brought by the Department of Social Services (hereinafter referred to as “DSS”) on behalf of the children. The Respondent is charged, as a parent substitute, with sexually abusing the child, the first child. The criminal respondent mother is charged with failing to protect the child. The petition on behalf of the second child is brought as a derivative petition against both respondents.

A Nassau Rape Lawyer said that, the petitions allege that the respondent parent substitute/father committed, or allowed to be committed, a sex offense upon said child, as defined in the penal law. The respondents parent substitute/father and mother failed to provide said child with proper supervision or guardianship, and said child’s physical, mental and emotional condition has been impaired and/or are in imminent danger of becoming impaired as a result of the failure of the respondents to exercise a minimum degree of care, requiring the aid of this Court, to wit: a) The respondent parent substitute/father has committed sex offenses upon this six (6) year old child. The respondent parent substitute/father placed a condom on his finger and inserted that finger into the six year old child’s rectum. The respondent parent substitute/father did this, on 12/25/07, while babysitting the first child and his biological child, was present in the same bed. b) On or about 12/25/07, the first child told the respondent mother that the respondent parent substitute/father inserted his finger in her butt. The respondent mother found the condom. On or about 3/26/08, the respondent mother told a detective from the Nassau County police department that she wanted to stop the investigation as she wanted the respondent parent substitute/father to return to the residence. The respondent mother is unwilling or unable to protect said child. Said child is in imminent danger of physical, mental and emotional harm due to the failure of the respondent mother to provide a minimum degree of care in the circumstances.

A Nassau Rape Lawyer said that, a fact-finding hearing was held over a number of dates: March 5, 2009, March 6, 2009, March 9, 2009, March 10, 2009, March 13, 2009, April 13, 2009, April 16, 2009, May 4, 2009 and May 18, 2009. The Presentment Agency, DSS, called seven witnesses. The respondents did not call any witnesses, nor did the Attorney for the Children.

The issue in this case is whether the subject child has been sexually abused and the respondent mother failed to protect the child.

Family Court Act § 1012(e) defines an “abused child” as one who is less than 18 years of age whose parent or other person legally responsible for his care, (iii) commits or allows to be committed an offense against such child defined in Article one hundred thirty of the Penal Law. § 1012(g) defines “person legally responsible” as the child’s custodian, guardian, or any other person responsible for the child’s care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse of neglect of the child. Domestic Violence is in play.

It is undisputed that respondent was left to care for the children on December 25, 2007 while the respondent mother went to work. It is clear from all the testimony that while he is the biological father of the children also believes him to be her father. She refers to him as Daddy and knows no other man to be her father. Despite the fact that respondent and the mother are not legally married and that the first child does not bear his name, they hold themselves out as a family where respondent is the father to the first child as well as the second child. As such, the Court does find that respondent is a person legally responsible for the care of the first child.

Family Court Act § 1046(a)(vi) states that “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence. The law requires, however, that the child’s statement alone, unless corroborated is not enough to make a finding of abuse or neglect.” The statute goes on to say that “any other evidence tending to support the reliability of the previous statements, including but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration. The testimony of the child shall not be necessary to make a fact-finding of abuse or neglect.”

In the case before the Court, the child made a statement to the Detective in the presence of another Detective. The mother, also gave a detailed statement to the CPS caseworker. The statement that the first child gave to the Detective as well as the first child’s statement as conveyed to the case worker by the mother were consistent with one another.

While there are some minor differences in the details of the statements, they are all essentially identical in their content. The issue that must be examined is whether the first child’s out of court statements to these witnesses has been sufficiently corroborated as required by FCA § 1046(a)(vi) before a finding of abuse or neglect can be made. Mere repetition of the statement is not enough. In the instant matter the Presentment Agency called seven witnesses. Four of the witnesses testified as to the first child’s statement and actions. The doctor testified as to medical findings. The Court had the unique opportunity to observe all of the witnesses while they testified. The Court observed the demeanor and assessed the credibility of each of the witnesses. The Court found all of the witnesses to be truthful and credible.

It is clear from the testimony and the medical evidence that the first child underwent an appendectomy on December 1, 2007 and remained in the hospital for approximately two weeks. During this time, the first child suffered with diarrhea. She was also taking antibiotics which are known to cause diarrhea. There was additional testimony that she had not been eating solid food, but rather, was on a liquid diet, which added to her symptoms of loose stools and diarrhea. While the doctor testified that her medical findings were consistent with the history of penetration of the child’s anus by an adult male finger, she also acknowledged that diarrhea can sometimes cause irritation, which when exacerbated can result in anal fissures.

Additionally, there was testimony that there were fissures in advanced stages of healing approximately two weeks old, well before this incident.

The Court finds that the medical evidence is inconclusive. It is clear that the first child suffered from a prolonged period of diarrhea. Although the doctor testified that the injuries she observed are consistent with anal penetration by an adult male finger it cannot be ruled out that the existent fissures were caused as a result of diarrhea and further irritation.

In reviewing the testimony of the forensic expert, the Court finds that there is no conclusive evidence that this condom ever came into contact with the child the first child. While the forensic expert testified that neither the first child nor her mother could be excluded as contributors to the DNA mixture on the outside of the condom, it was clear that the existence of the child’s DNA was also present because children have similar DNA make-up as their parents. Therefore, the child’s DNA would always be present if the mother came into contact with the condom, which we know to be true in this case.

While the Court found the witness to be credible, the statement of the child second child will not be considered in this determination. The disclosure by the second child ten months after the incident is suspect. The Court makes no finding of foul play, but rather, makes this determination solely based on the child’s tender years and failure to report anything at the time of the incident. The fact that the second child actually used the word condom renders her statement questionable. It is more likely that the second child overheard the telling and retelling of the story, explaining how she may have had all the details. Therefore, the Court will not consider the second child’s statement in this determination.

Nonetheless, the Court does find that the first child’s statements are sufficiently corroborated to support a finding of sexual abuse by the respondent.

The child made a disclosure to her mother that her daddy took a round thing from mommy’s pocketbook, put it on his finger and put his finger in her butt and then threw the round thing into the garbage. The mother immediately went to the trash and recovered the condom which she brought to the police department. The child never used the word condom. There is no evidence that she knew what a condom is. She explained what she saw and what she saw Mr. R. do with it. The mere existence of the condom in this Court’s view, corroborates the child’s statement. The DNA test performed on the condom, while not probative regarding contact to the child, is probative in other regards.

The Court found that the first child’s statements to her mother and the Detective were credible. The respondent, argues that the child’s statements as testified to, are unreliable as they were fraught with inconsistencies. Additionally, it was argued that the statement was unreliable as it was made in English when the child’s primary language is Spanish. The Court dismisses these arguments as not persuasive.

It is clear that the child reported that she did not know the difference between the truth and a lie and that she was mistaken in reporting her sister’s age and even her own birthday, but the Court does not find this to be significant. It is not unusual that a six year old child would be confused as to some of these facts especially in light of the trauma of a sexual assault. The child told the story to her mother and to Detective Turner. The child was consistent each time she told the story as to the events of Christmas, 2007 with many details. The child was able to describe the condom, the positions she was lying in on the bed as well as the pink dress and blue socks that she was wearing. It was clear from the testimony that it was the child’s choice to speak in English rather than Spanish and she was comfortable in doing so.

The Court has considered the first child’s subsequent statement where she said the assault did not happen. The first child later reported that she only said Daddy did this to her because she was angry with him for forcing her to eat something when she did not want to eat. It is this later statement that the Court believes to be coerced. It is clear from the testimony that the first child was brought to the Detective in March of 2008 by her mother to recant her initial statement and that she was forced to do so. She eventually broke down and revealed that she was told by her mother to say it did not happen so Daddy could come home. She began to cry again when telling what she had originally reported when in her office on the previous occasion with the detectives.

The Court finds the first child’s story of sexual assault by the respondent to be credible and sufficiently corroborated.

With regard to the allegations pending against the mother, it is clear that she believed her daughter at the time the disclosure was made. It is clear from the evidence that she believed her daughter’s version of events when told to her. That she did not hesitate to search for the condom, to report immediately to the police department and to follow through with a medical examination shows she had no doubt as to the veracity of the story. That she provided the condom, and the child’s clothing to the police supports her belief in the child’s story. That she began to cry when telling the story supports her belief.

Based on all the evidence presented the Court does find that the Presentment Agency has proven by a preponderance of the evidence that the first child was sexually abused by R. R. pursuant to Family Court Act § 1012(e)(ii) in violation of Penal Law § 130.50 and § 130.67. Additionally, the Court finds that the respondent’s sexual abuse against the first child establishes a flawed understanding of a parent’s duties and impaired parental judgment sufficient to support findings of derivative neglect of the second child and therefore makes a finding of derivative neglect regarding the remaining child.

If you’re a child has been subjected to sex crime or rape, seek the representation of a Nassau Rape Attorney and Nassau Sex Crime Attorney at Stephen Bilkis and Associates. Call us.

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