Opinion
NA-8664/06.
Decided August 26, 2010.
Kelley Burns, Esq., for the Administration for Children's Services, Deana Balahtsis, Esq., for the respondent father, and Tara Famularo, Esq., of The Legal Aid Society, for the child.
PROCEDURAL HISTORY:
This case has a complicated procedural history. The initial petitions were filed on May 8, 2006 against the mother, Kim R. (hereinafter "the mother"), regarding her three children, Tyre R., born on August 19, 1993, Julius G., born on November 16, 1998 (the sole subject child in this proceeding), and Jaylon M., born on December 17, 2004. The petitions alleged that Tyre was sexually abused, that Julius and Jaylon were derivatively sexually abused, and that all the children were neglected. More specifically, the sexual abuse allegations were that on or about May 5, 2006 Julius informed the caseworker that the mother makes him hold a mirror while she shaves her vagina, that she makes Tyre put his finger in her vagina as she shaves her vagina, and that she makes Tyre shave her vagina. The neglect allegations were that the mother left Tyre (then age 13) at home, alone, to care for Julius (then age 7) and his brother Jaylon (then age 18 months), that candles were lit in the home even when the mother was not at home, that Julius wet the bed at night and his mother made him sleep in the urine-soaked bed and sent him to school in urine-soaked clothes, that the mother failed to protect Julius when his brother Tyre became angry with Julius and squeezed Julius's penis and punched him, that Julius was absent from school 22 days and late 35 days and that Tyre was absent from school 32 days and late 33 days during the 2005-2006 school year.
On April 13, 2007, eleven months after filing the initial petitions, ACS filed two sets of amended petitions. The first set, filed at 11:53 A.M., contained no allegations against the mother but alleged that the respondent father, Claude G., emotionally neglected Julius. Those petitions alleged that Julius told Eileen Treacy, Ph.D., a developmental psychologist retained by ACS in February 2007 to assess the sexual abuse allegations, that his father coerced him into making false allegations about him holding a mirror while the mother shaved her vagina and that the father coerced him into making false allegations of excessive corporal punishment inflicted upon him by the mother. The petitions alleged that Julius and his siblings were removed by ACS for eight days because of these false allegations. The second set of amended petitions filed on April 13, 2007 at 4:19 P.M. named both the mother and father as respondents, and contained allegations against the mother that were identical to those against her in the original petition filed on May 8, 2006 plus allegations against the father that were identical to those against him in the petition filed earlier that day supporting a cause of action in neglect.
On April 18, 2007, ACS withdrew all the sexual abuse allegations against the mother and the court entered a one-year adjournment in contemplation of dismissal ("ACD") against the mother as to the remaining neglect allegations. The ACD required the mother to ensure that Tyre and Julius attend school and that Julius receive an evaluation and cooperate with appropriate counseling services if deemed necessary.
One year later, on April 18, 2008, after the mother's successful completion of the terms and conditions of the ACD, this court dismissed all the remaining allegations against the mother and began the fact-finding hearing as to the neglect allegations against the father. After ACS concluded its case against the father, the father terminated the services of his attorney because he was dissatisfied with the attorney's performance. The father retained new counsel and, on December 4, 2008, the court ordered a mistrial.
The second fact-finding hearing against the father commenced on March 5, 2009 and concluded on May 20, 2010. During that period of time, other hearings were held and decisions were rendered with respect to visitation between Mr. G. and Julius and with respect to allegations that Mr. G. violated an order of protection by visiting Julius at his school.
At the conclusion of the fact-finding proceedings, the court issued a written summation schedule. After considering all the evidence and assessing the credibility of all the witnesses, the court hereby determines that ACS has failed to establish by a fair preponderance of the evidence that the respondent father, Claude G., neglected Julius as that term is defined in Article 10 of the Family Court Act. Therefore, pursuant to Family Court Act § 1051(c), this petition is dismissed with prejudice.
EVIDENCE PRESENTED AT TRIAL At trial, ACS presented the testimony of caseworker Janet Caesar and developmental psychologist Eileen Treacy, Ph.D. ACS also submitted documentary evidence including the curriculum vitae and summary report of Dr. Treacy.
The respondent testified and presented the testimony of his wife, Gloria Jenkins G., and of Anne Meltzer, Ph.D. The respondent also presented Dr. Treacy's evaluation records of Julius's assessment and a copy of the video recording of Dr. Treacy's evaluation of Julius. Dr. Meltzer's curriculum vitae was also submitted into evidence, along with an Appellate Division decision in the Matter of the State of New Jersey v. Michaels (a New Jersey Appellate Division reversal of a case in which Dr. Treacy participated as an expert).
The child's attorney presented no witnesses.
Caseworker Janet Caesar testified that this case commenced with a call to the State Central Register of Child Abuse and Maltreatment on March 15, 2006 made by Norman M., Julius's brother Jaylon's paternal grandfather. As part of her investigation, Ms. Caesar spoke to Julius on four occasions about the allegations in this case. During the first interview, on March 26, 2006, Julius denied that he ever held up a mirror to his mother's vagina when she shaved and denied that he saw his brother place his finger in his mother's vagina. During a second interview, on April 7, 2006, Julius again denied inappropriate conduct by his mother. During the third interview, on May 5, 2006, an interview that took place at Julius's school, Ms. Caesar asked Julius whether his mother had him hold up a mirror to her vagina as she shaved her vagina and Julius responded, "yes." Ms. Caesar testified that Julius looked fidgety and nervous when he answered her questions. He indicated that he did not tell her previously about these allegations because his mother was nearby. He further said that he wanted to live with his father and that his mother beat him. The fourth time Ms. Caesar spoke to Julius was on May 9, 2006, five days after he was removed from his mother and placed in foster care. On that day Julius was being transported to his grandfather's home. Julius told Ms. Caesar that his father, Claude G., instructed him to lie about Tyre putting his finger in his mother's vagina and about holding up the mirror when his mother shaved her vagina. Julius indicated that his father instructed him to lie because his father wanted Julius to live with him. At this interview, according to Ms. Caesar's testimony, Julius looked scared and nervous, but also relieved.
Eileen Treacy, Ph.D, was qualified by this court as an expert in sexual abuse and developmental psychology. Dr. Treacy testified that she was retained by ACS in February 2007 to conduct an assessment of sexual abuse allegations. Although the initial report of alleged sex abuse was made in March 2006, Dr. Treacy did not meet with Julius until eleven months later, in February 2007, which was a full nine months after the initial petition was filed in this case. After interviewing Julius, Dr. Treacy concluded that he was coached by his father to make false claims of abuse so that Julius might live with his father. Dr. Treacy further testified that asking a child to make a false report of abuse is "psychologically abusive."
In Claude G.'s testimony, he denied telling his son to make false allegations against his mother. He further testified that his last visit with his son prior to the filing of the petitions in this case was March 20-21, 2006.
Mr. G.'s wife testified that Julius and Claude G. had a fine father-son relationship and that their last visit was during the Easter school recess in 2006.
Dr. Anne Meltzer was qualified by this court as an expert in psychology and child sexual abuse. Dr. Meltzer testified critically of Dr. Treacy's findings. Dr. Meltzer reviewed the video of Dr. Treacy's interview with Julius and also reviewed Dr. Treacy's reports and notes. She found that Dr. Treacy reached conclusions beyond the information presented to her.
DISCUSSION
Family Court Act § 1012 provides that a finding of neglect may be made where the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of a parent to exercise a minimum degree of care . . . (B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment . . . or by any other acts of a similarly serious nature requiring the aid of the court. Family Court Act § 1046(b)(i) provides that a finding must be by a preponderance of the evidence.
The allegations are that the father coerced Julius into falsely stating that the mother required him to hold a mirror while she shaved her vagina; that the father coerced Julius into falsely stating that the mother inflicted excessive corporal punishment upon him; and that the false statements resulted in Julius and his siblings being removed from their home for eight days.
The evidence of what, in fact, happened consists almost entirely of Julius's out of court statements. Family Court Act § 1046(a)(vi) permits a child's "previous statements" to be admitted into evidence but prohibits them from forming the basis of a finding of neglect or abuse if they are not "corroborated." A child's statements can be corroborated by a sex abuse evaluator's testimony. Matter of Nicole V., 71 NY2d 112 (1987).
In his first two conversations with case worker Caesar, Julius denied the sexual abuse allegations. He later confirmed them. Still later, he recanted, saying that the father had instructed him to confirm the allegations. It is difficult from this information alone to determine what the truth is.
Dr. Treacy spent ninety minutes with Julius and concluded that Julius's statements, behavior and affect were not consistent with sexual abuse. She also concluded that Claude G. coached Julius, but she offered little support for her conclusions. She testified that it was her opinion that Julius's statements to her during the evaluation were reliable and that her opinion was based on the consistency with which Julius reported that he had been coached to make statements against his mother.
However, Dr. Treacy's conclusion is not convincing. Upon review of Dr. Treacy's recorded meeting with Julius, it is clear that Dr. Treacy spent little time exploring the issue of whether or not Julius was coached by anyone. Also unexplored were conclusions that Julius expressed about his father based on things a brother told him. Dr. Treacy spent little of the evaluation time discussing the allegations or the dynamics of the relationship between Julius and his parents, or the relationship of the parents to each other. This exploration might have been critical because during the period of over one year between Julius's alleged recantation and the evaluation by Dr. Treacy — a time during which the respondent father had no more than minimal contact with Julius — the mother and other family members may have had an influence over Julius's thoughts. When Julius said to Dr. Treacy that his father told him to make allegations of misconduct against his mother so that he could live with his father, it is impossible to determine whether Julius reached the conclusion on his own that the goal of the deception was to live with his father, or whether Julius's father or mother or anyone else told Julius that that was the goal. Without probing very deeply into what Julius told her during the evaluation, Dr. Treacy appears to have taken Julius's recantation and his statement that his father told him to lie as truth.
There were other aspects of Dr. Treacy's interview with Julius that were troubling. At times, Dr. Treacy appeared dissatisfied with Julius's answers to her questions and challenged his answers. At other times, Dr. Treacy asked leading questions. At one point, Dr. Treacy interrupted Julius's answer and he never completed it.
Although Dr. Treacy administered numerous psychological tests, the tests add nothing that helps the court determine the facts or the child's credibility. Moreover, the tests were performed at a time so distant from the events in question as to be relatively useless, adding nothing of worth to the record.
In opposition, the testimony of Dr. Meltzer was offered and it raised grave doubts about Dr. Treacy's assessment. Dr. Meltzer testified that much of the time Dr. Treacy spent assessing Julius was spent on psychological tests of unclear value in this case. Dr. Meltzer believed that Dr. Treacy's interview of Julius was not sufficiently extensive, that she did not explore the child's initial abuse allegations in sufficient depth, and that she did not deeply explore either parent's ability and opportunity to coach Julius. Dr. Meltzer also believed that a very long time had passed between Julius's allegations and recantations and Dr. Treacy's interview with him, casting further doubt on the value of Dr. Treacy's assessment. Dr. Meltzer concluded that Dr. Treacy's methods and the data she collected did not provide a sufficient basis upon which to make a determination that Mr. G. coached Julius. The court agrees with Dr. Meltzer's conclusion.
And even if it were true that Julius lied at the insistence of his father and then recanted, there is insufficient evidence in the record to establish that Julius's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired. Family Court Act § 1012(h) defines "[i]mpairment of emotional health" and "impairment of mental or emotional condition" as "a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy." This court did not find any evidence of substantially diminished functioning.
Although Dr. Treacy mentioned that "psychological abuse" occurs when a child is coached to make false allegations, there was no evidence whatsoever supporting a finding of impairment of the child's emotional health and no evidence supporting a finding that Julius's mental or emotional condition was in imminent danger of becoming impaired.
Further contributing to this court's decision is the fact that ACS's own actions in investigating this case also cast doubt on the truth of the allegations. ACS returned Julius to his mother after he recanted, clearly signaling that they believed the recantation. ACS did this prior to engaging Dr. Treacy to conduct the sexual abuse evaluation. Nine months later, when ACS finally decided to conduct a sexual abuse assessment — one which was flawed because of its age and because its conclusions were insufficiently supported — ACS took the opposite position asserting that Julius' father coached him. During the nine months Julius was with his mother, it is just as likely that she influenced his responses to the questioning. Either way, the flawed assessment by Dr. Treacy provides no basis upon which to find that Julius's mental or emotional condition was impaired or in imminent danger of becoming impaired by the actions of the father.
In Matter of Patricia M. and Jacquelyn M., 177 AD2d 1010 (4th Dept., 1991), the court found that even if the respondent father had exerted pressure on his daughters to falsely recant a sexual abuse allegation, such would not support a finding of neglect because there was no proof that the father's alleged action had any impact on the daughters' physical, mental or emotional condition. This court reaches the same conclusion in this case.
A finding of child neglect is reserved for acts of parental misconduct serious enough to meet the statutory definition of impairment or imminent impairment. Indeed the Court of Appeals has reiterated this clear standard in its decision Nicholson v. Scoppetta:
This prerequisite to a finding of neglect ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior. "Imminent danger" reflects the Legislature's judgment that a finding of neglect may be appropriate even when a child has not actually been harmed; "imminent danger of impairment to a child is an independent and separate ground on which a neglect finding may be based. (citation omitted) Imminent danger, however, must be near or impending, not just possible. ( 3 NY3d 357, 369 (2004)
The court finds no impairment and no imminent impairment. Furthermore, the court does not find that the respondent father failed to exercise a minimum degree of care.
A finding of neglect is a very serious matter not to be taken lightly. It, itself, can create an interference with the parent/child relationship and if a finding is made improperly, it can impose a unnecessary stigma on a parent and child that lasts forever.
The petition is dismissed with prejudice.
This constitutes the decision and order of the court