Opinion
XXXXXXX
09-29-2016
In the Matter of J.M. JER. M. Children Under the Age of Eighteen Years Alleged to be Abused and Neglected by v. E.M., Respondent.
The following are the names of the attorneys of the concerned parties: Allison Corley, Esq., Administration for Children's Services, petitioner Mara Fleder, Esq. Bronx Defenders, respondent Alison Holstein, Esq., Legal Aid Society, for the children
The following are the names of the attorneys of the concerned parties: Allison Corley, Esq., Administration for Children's Services, petitioner Mara Fleder, Esq. Bronx Defenders, respondent Alison Holstein, Esq., Legal Aid Society, for the children Gilbert A. Taylor, J.
NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. TAYLOR, G., F.C.J.:
Procedural History/Factual Findings:
On November 7, 2014 the Commissioner of the Administration for Children's Services [hereinafter "ACS"] filed a petition alleging that the Respondent father, E. M. [hereinafter "the Respondent"] abused the subject child, J. M., and derivatively neglected the child Jer. M., by committing or allowing to be committed a sex offense against the subject child J. as defined in Article 130 of the Penal Law, specifically Penal Law sections 130.52, 130.55, 130.60 and 130.65. It is alleged that upon information and belief, the source being a social worker with New York Foundling, that on or about November 5, 2014 the subject child J. stated to the social worker that when the respondent father gets drunk, he comes into her room while she is sleeping and kisses her, licks her ear and touches her private area.
It is further alleged upon information and belief, the source being the ACS Child Protective Specialist [hereinafter "CPS] that the subject child J.M. stated that during the summer time when her mother is at work, the Respondent father takes her into her mother's room to watch movies. The subject child J. further stated that as soon as she falls asleep, the Respondent father kisses her on her face and neck, licks her ears and rubs her on her private parts and that this happened more than once. The subject child also stated that she would repeatedly ask the Respondent father to stop touching her.
The petition also alleges that the Respondent father E. M. fails to provide the subject child J.M. with proper supervision and guardianship by unreasonably inflicting or allowing to be inflicted harm by misusing alcoholic beverages to the extent that he loses control of his actions in that upon information and belief, the source being the subject child, the subject child stated to a worker from New York Foundling that when the Respondent Father E. M. gets drunk, he comes into her room, kisses her ear, licks her face and touches her private area.
On November 7, 2014, when the case was filed the children were released to the care of their non-respondent mother Jacqueline F. with ACS supervision being in place in the home. The court issued a full stay away temporary order of protection against the Respondent father, E. M. prohibiting him from having any contact with the children. ACS was directed to serve the Respondent father with the petition and with the temporary order of protection. The Respondent father was arrested for these allegations and a criminal court case is pending against him.
On July 7, 2015 the Respondent father, E. M. appeared in court, was assigned counsel to represent him on this case and was arraigned on the petition. On September 28, 2015, the Respondent father was permitted to have strict agency supervised visitation with the child Jer. only. The Respondent father was not permitted to have any visitation with the child J.M. unless it was therapeutically indicated by J.'s therapist.
On December 1, 2015, ACS subpoenaed the child J. to testify at fact-finding on this case and the Attorney for the Children filed papers seeking to have the child J.M. testify outside the presence of the Respondent. On January 21, 2016, the court conducted a Vulnerability Hearing and at the conclusion of the hearing granted the motion made by the Attorney for the Children and permitted the child J.M. to testify via closed circuit 2-way television. A copy of the transcript from this hearing was made part of the court's record at fact-finding as Court's Exhibit No.1 solely for the purpose of explaining why the testimony was taken via closed circuit 2-way television.
On April 19, 2016, the fact-finding hearing on this case commenced. The birth certificates for the children J.M. and Jer. were admitted into evidence collectively as Petitioner's Exhibit #1 on consent of all counsel. ACS called the child J.M. to testify via closed circuit 2-way television as Petitioner's Witness #1. The direct examination of the witness was completed on this day. Cross examination by Respondent's counsel of the witness began on this date but was not completed. Additionally, on consent of all counsel and parties, the court directed closely monitored agency supervised visits to take place between the Respondent father and the child J.M. if approved by J.'s therapist and such visits were to be supervised by a Spanish speaking agency staff member.
On August 22, 2016, the fact-finding hearing on this case continued. The child J.M. continued testifying via closed circuit 2-way television. Cross examination was completed by all counsel and the witness's testimony was complete. No other witnesses were called by the petitioner and all sides rested their cases at fact-finding. Oral summations at fact-finding were completed on August 23, 2016 and decision was reserved until September 29, 2016. Testimony of J. M. :
The child J.M. testified on April 19, 2016 and on August 22, 2016 via closed circuit television. She testified that she is 9 years old, she stated her birthdate, address and the name of the school which she attends. She testified that she lives with her mother, her two brothers, her turtle and her brother's turtle. She stated her brother's names and ages. She testified that her father E. M. had also lived with them. She testified that her father has stopped living with them in October of 2014 when she was in the 3rd grade. She testified that her father stopped living with them because he touched her in her private part.
J.M. testified that she had told a man at her school about her father touching her in her private part. She testified that she could not remember the man's name. She testified that the man was at her school presenting at an assembly which took place in October, doing a puppet show which reminded her about what happened with her father. She testified that the puppet show was about a girl whose step father touched her and the girl's friend told her to tell adults about it. J.M. testified that she and the other students were told to stay behind at the end of the assembly if they had any problems. She testified that she stayed behind and told the man about what happened with her father.
J.M. testified that her father had touched her in the summer of 2014. She remembered the date as being after she had finished the 2nd grade and she was getting ready to begin the 3rd grade. She testified that the touching happened at nighttime while watching a movie in her mother's room with her father, where they were together alone. She testified that they were watching a "Chuckie" movie and that her mother was working late. She testified that her older brother was in his room and that Jer.M was in the bedroom that she and he shared.
J.M. testified that both she and her father were on her mother's bed in the room; she testified that they were both laying on their backs and that she was wearing pajamas, which consisted of a shirt and pants. She testified that she was wearing underwear under her pajamas. J.M. testified that they were watching the "Chuckie" movie and at the end her father touched her in her private part under her pajamas pants and beneath her underwear with his hand. She testified that this made her feel upset and that she told her father to stop. She said he would stop sometimes and other times he would keep going. She said this made her feel sad.
J.M. testified that she did not know how many times this had happened, but that it happened more than once. She testified that when this happened her father was wearing shorts. J.M. testified that telling the truth means to tell somebody something that really happened. If it didn't happen, you could get in trouble if you are caught telling a lie. She was able to correctly and truthfully identify the color of ACS counsel's shirt and stated that if she described it as being a different color than what it was, then she would be telling a lie.
On cross examination, J.M. testified that she did not tell her best friends about what happened with her father. She testified that she did not tell her 2nd grade teacher Ms. M. about what happened. She testified that she did not tell her 3rd grade teacher Ms. P. about what had happened. She testified that she had not disclosed this to anyone including school counselors, school nurses, her 27-year-old sister, her brothers or to any of her friends in church.
Additionally, on cross examination J.M. testified that her father would sometimes make dinner for her; that he would watch movies with her; that he would take her to the park; and that he would take her to get ice cream. She would talk to him about what was going on in school and sometimes about her friends. She testified that she missed her father sometimes since he was no longer in their home.
J.M. testified on cross examination that she remembered the school assembly taking place in October because it was approximately two months into the beginning of the school year. She again testified that the incident took place in her parent's bed at night. She testified that she was lying on the bed on the side closest to the wall. She further testified that she could not remember any other incidents that had happened. J.M. testified that she did not remember all of the answers that she gave in response to questions that she had been by Assistant District Attorney K. when she first made these allegations.
Legal Analysis:
A child may corroborate her own prior statement or present new evidence by testifying under oath. Matter of Nicole V, 123 AD2d 97 (1st Dept. 1987). In this case, the subject child J. M. did testify under oath. To this court's satisfaction, she knew the difference between the truth and a lie. J.M. testified in an open and forthright manner. She was consistent in her testimony and did not appear confused, and she did not contradict herself in any significant way. She testified to basic details related to the alleged sexual abuse. J.M.'s out-of-court statements were consistent with those given by her in her sworn testimony.
The fact that she made her out-of-court statement to very few people is not unusual. Substantial bodies of literature have noted the difficulty that young children experience in revealing acts of sexual abuse, especially against a parent. For this reason, the standard of sufficiency for corroboration in child protective proceedings are different from those applied in criminal court matters. The criminal corroboration requirement is not applied in the same way in child protective cases. Nicole V, supra at 102.
Family Court Act Section 1012 defines an abused child, in pertinent part, as "a child less than eighteen 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 on hundred thirty of the penal law" (Family Court Act section 1012[e]{[ii]). Penal Law section 130.00(3) defines sexual contact as "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. 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, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed." In support of its claim that the Respondent E.M. sexually abused the child J. M., Petitioner ACS presented the in-court testimony of the child J.M.
Counsel for the respondent father E.M. questioned the reliability of J. M.'s testimony in that the child was the only source of the alleged acts of sexual abuse by the Respondent. However, J. M.'s testimony was competent evidence that the Respondent sexually abused her and the absence of physical injury or other corroboration does not require a different result. Matter of Ashley M.V., 106 AD3d 659 (1st Dept. 2013), citing Matter of Christina G. [Vladimir G.], 100 AD3d 454, (1st Dept. 2012), lv denied 20 NY3d 859 (2013); Matter of Jonathan F., 294 AD2d 121 (1st Dept. 2002). At fact-finding J.M. presented a detailed and clear account of the sexual misconduct by the Respondent father against her.
Her sworn in-court testimony via closed circuit television was subject to cross examination. During her in-court testimony, which was presented over two days, J.M. was thoughtful, forthcoming and consistent in what she reported. She was not confused and testified to sexual acts and conduct using age appropriate terms. She clearly described an incident in which the Respondent Father touched her in her private parts during the summer of 2014 while she and he were alone in the parent's bedroom and watching a movie in the dark, at night. J.M. described acts which constitute offenses under New York Penal Law sections 130.52 (forcible touching) and 130.55 (sexual touching 3rd degree). The nature of these offenses and the circumstances in which they occurred demonstrate the Respondent father's intent to obtain sexual gratification. Matter of Lauryn H., 73 AD3d 1175 (2nd Dept. 2010) ["The element of intent to obtain sexual gratification (see Penal Law Section 130.00 [3]) may be inferred here from the nature of the acts committed and the circumstances in which they occurred." {internal citations omitted.}]
J.M. testified that the sexual abuse occurred in her parent's bedroom while she and her father were alone at night watching a movie in the dark. She testified that her mother was not home. She testified that at the end of the movie, her father touched her in her private part under her pajamas pants, beneath her underwear, with his hand. She testified that this made her feel upset and that she told her father to stop. She said he would stop sometimes and other times he would keep going. She said this made her feel sad.
This court assesses J.M.'s testimony to be consistent, clear and sufficient in providing specific details about the abuse to which she was subjected. Her testimony on April 19, 2016 was taken in the early morning and J.M. was alert, responsive and credible in the testimony that she provided. Matter of Sonia C. [Juana F.], 70 AD3d 468 (1st Dept. 2010). Her testimony on August 22, 2016 was taken in the late afternoon and while J.M. seemed somewhat tired, her testimony again was responsive and credible. Despite her testimony being taken via CCTV, J.M. made good eye contact with her questioners. She kept her voice up and was appropriately responsive to the questions that were asked of her. J.M. was honest when she did not know or remember the answer to a question and did not present as defensive in any way when asked questions about the specifics of her abuse. There was absolutely no evidence presented at trial which contradicts the testimony offered by J.M. The consistency and details of her account of events during her testimony gives this court assurance in the credibility and honesty of J.M.'s testimony. Her testimony read a whole, does provide the requisite corroboration to her statements made during the course of the child protective investigation. Her detailed and consistent testimony was sufficient to corroborate her out-of-court statements. Matter of Jamie EE., 249 AD2d 603, 605 (3d Dept. 1998). J.M.'s credible testimony, if unrebutted, is sufficient, standing alone, to sustain a finding of child sexual abuse (see Matter of Rolando T., 261 AD2d 143, 144 [1st Dept. 1999]) upholding the Family Court's determination that the Respondent mother sexually abused her stepson based on the child's testimony that she performed acts of fellatio upon him.)
This court does find that the proof of the Respondent's abuse of the child J.M. is admissible in considering the question of whether the Respondent has derivatively neglected the child Jer. M. The nature of the direct abuse that J.M. was subjected to and the circumstances surrounding its commission does evidence a flaw in the Respondent father's understanding of the duties of parenthood. Matter of Dutchess County Dept. of Social Servs. v Douglas E., Jr. 191 AD2d 694 (2d Dept. 1993). In the instant case, the sexual abuse of J.M. took place in the family's home, when the child Jer. was also home. J.M.'s testimonial evidence suggests that the child Jer. M. could have readily accessed his parents' room in which the sexual abuse occurred. Exposure to J.M.'s sexual abuse could have caused Jer. M. protracted emotional harm by witnessing the same.
The testimonial evidence presented at the fact-finding hearing does not support the allegation that the respondent E. M. misuses alcoholic beverages to the extent that he loses control of his actions. There was no testimonial evidence offered at fact-finding that E.M. gets drunk and as a direct result of the same kisses J.M. on her ear, licks her face or touches her private areas. The court finds that the petitioner has failed to establish this allegation in the petition by a fair preponderance of the evidence.
The Respondent E.M. failed to testify and this Court does draw the strongest inference against him as the opposing evidence would allow. Matter of Ashley M., 235 AD2d 858 (3d Dept 1997).
In summary, the court does find that the petitioner has established its case by a preponderance of the credible evidence and makes a finding pursuant to Family Court Act section 1012(e)(iii) that E.M., the father and person legally responsible for J.M., abused the child J.M. by committing sexual offenses against her as defined in Article 130 of the Penal Law. The court further finds that E.M. has derivatively neglected the child Jer.M.
The dispositional hearing in this matter will be scheduled forthwith. Dated: Bronx, New York September 29, 2016 ENTER: Hon. Gilbert A. Taylor, J.F.C.