Opinion
File No. 238823
10-11-2023
In the Matter of A.G., C.G., D.G., Children under Eighteen years Of Age Alleged to be Permanently Neglected by R.K. and D.G., Respondents
HALEY EIMSTAD, ESQ. Attorney for the Erie County Department of Social Services GINA VALLONE BACON, ESQ. Attorney for Respondent, R. K. RACHEL MARRERO, ESQ. & SARA ANTHIS, ESQ. Attorneys for Respondent, D. G. CHERYL ZAK, ESQ. Attorney for the Child, A. G. MELISSA HORVATITS, ESQ. & CRISTIANA (SIBLEY) RAFIDI Attorney for the Children, C. G. and D. G.
Unpublished Opinion
HALEY EIMSTAD, ESQ. Attorney for the Erie County Department of Social Services
GINA VALLONE BACON, ESQ. Attorney for Respondent, R. K.
RACHEL MARRERO, ESQ. & SARA ANTHIS, ESQ. Attorneys for Respondent, D. G.
CHERYL ZAK, ESQ. Attorney for the Child, A. G.
MELISSA HORVATITS, ESQ. & CRISTIANA (SIBLEY) RAFIDI Attorney for the Children, C. G. and D. G.
Brenda M. Freedman, J.
Petitioner Erie County Department of Social Services filed a Family Court Act ["FCA"] Article 10 proceeding on October 6, 2021 on behalf of the children, C. G. (DOB 05/2007); A. G. (DOB 09/2008) and D. G. (DOB 06/2010) against the Respondents, R. K. ["Respondent-Mother"] and D. G. ["Respondent-Father"].
The Petitions alleged, inter alia, that Respondent-Father had been sexually abusing A.G. since she was four (4) years old, beginning with forcibly touching and fondling her; that as she got older, the abuse progressed to inserting his finger into her vagina, performing oral sex on her, having her perform oral sex on him and later, engaging in sexual intercourse. The Petitions further alleged that Respondent-Mother had instructed A.G. to blame the sexual abuse on her Uncle Mark rather than on Respondent-Father, including at her forensic interview, and threatened that she would be put into foster care and the family would lose their house if she did not; that the parties allowed A.G. to have telephone contact with her Uncle Mark, a known pedophile and registered sex offender; and that although Respondent-Mother had agreed pre-petition to prevent contact between A.G. and Respondent-Father, she put A.G. on the phone with him and instructed A.G. to pretend she missed him.
On October 6, 2021, a Temporary Order of Protection was entered in favor of the three children against Respondent-Father. The children were released to Respondent-Mother under a Temporary Order of Supervision with an affirmative obligation to enforce the Temporary Order of Protection.
The Order of Protection was modified on November 30, 2021 to allow agency-supervised access for Respondent-Father with C.G. and D.G..
Amended Petitions were thereafter filed on January 11, 2022. They alleged, inter alia, that since entry of the Temporary Order of Supervision and Temporary Order of Protection, Respondent-Mother caused a deterioration in A.G.'s mental health including by calling A.G. a liar, repeatedly asking A.G. if she wanted her father back in the home, pressuring her to recant, telling A.G. she had fabricated the sexual abuse as a result of a cyst on her brain which caused her to hallucinate, and telling A.G. it was her fault that Respondent-Father was absent from the home. It is further alleged that Respondent-Mother failed to prevent an adult sibling from blaming A.G. for their father being absent from the home and from putting Respondent-Father on speaker phone in A.G.'s presence. On that date, A.G. was remanded to the care of her paternal aunt. Respondent-Mother, C.G. and D.G. were granted therapeutic supervised access with A.G..
On June 2, 2022, it was alleged that the Temporary Order of Protection was repeatedly violated in that the children had visited with Respondent-Father outside of the designated agency, that Respondent-Father had been placed on speaker phone in the presence of the children. It was also alleged that C.G. was yelling at A.G. in school and the school had to create different schedules to keep them separated.
On July 2, 2022 it was alleged that A.G.'s mental health had continued to deteriorate, that she had gone to a Respite site but had used up all the allotted time there. It was further alleged that Respondent-Mother and Mason accosted A.G. on her way to school and tried to get her to recant. On consent of all parties, A.G.'s placement was modified to foster care. A.G. has remained in foster care to date.
On September 9, 2022 DSS's motion to approve the Qualified Residential Treatment Placement based on the mandated assessment was approved without objection.
Trial was scheduled for September 9, 2022. On that date, neither Respondent appeared and Trial proceeded in their absence. It was adjourned for the production of certain documents. After a series of mishaps with securing the documents, Trial concluded on August 29, 2023. The Court heard from Amber Love, a Department of Social Services Caseworker and Helena Mulawka, a New York State Police Investigator and Forensic Interviewer. Child Advocacy Records were received into evidence, including a video recording of the forensic interview. The parties made oral summations.
Now, upon all the pleadings and proceedings held herein and upon the Court's unique opportunity to observe and evaluate each witness, to review the pertinent statutes and case law and apply it to the evidence adduced at Trial, I render the following Findings of Fact and Conclusions of Law, Decision and Order:
Findings of Fact:
The parties are the parents of the children C.G., A.G. and D.G.. Until October 6, 2021 when the Temporary Order of Protection was entered, the children resided with both Respondents.
Ms. Amber Love, a Senior Caseworker for the Department of Social Services ["DSS"] testified. She is on the sexual abuse, serious injury and fatality team and has had several years of experience and specialized training. She testified that multiple reports were received regarding the subject children, C.G., A.G. and D.G. including at the end of September, 2021 when a report was made regarding Respondent-Father sexually abusing A.G.. Both Respondents denied the allegations.
Ms. Love put in a safety plan, asking Respondent-Father to leave the home and to have no contact with the children. She testified that both Respondents agreed to follow the plan. However, she testified, the safety plan was violated. Respondent Mother allowed Respondent-Father to call the children, including allowing him to speak with A.G.. At that point, Ms. Love filed a Petition pursuant to FCA Art. 10 seeking inter alia an Order of Protection against Respondent-Father to keep him out of the home.
A Forensic interview was held with A.G. at the Children's Advocacy Center ["CAC"] on October 1, 2021 and February 14, 2022. Ms. Helena Mulawka conducted the interview and Ms. Love was present via live streaming. Ms. Mulawka is a forensic interviewer and a New York State Police investigator stationed at the CAC where she has been for the past 10 years. Both Ms. Mulawka and Ms. Love testified about the interview and were consistent in their observations and reports. Their testimony was also consistent with the Court's observation of the video recording of the interview. This Court finds both testimonies to be credible.
At the interview, A.G. disclosed that her father had been sexually abusing her from the time she was four (4) or five (5) years old until she was 12 years old, when he was removed from the home. It started with him rubbing her tummy and progressed to finger penetration, oral sex and intercourse. A.G. was able to provide specific incidents of abuse including locations, times, circumstances and detailed descriptions of acts. A.G. spoke about the abuse at both interviews. Her statements were consistent across both interviews and she never contradicted herself. She described the acts in detail, for example she said her father kissed her breasts, licked her vagina, made her "suck his dick" on multiple occasions, that her father put his finger into her vagina more than once, and put his penis into her vagina more than once. A.G. said these things happened a lot, approximately twice per month. A.G. described various locations in the home this would occur including the bedroom, bathroom and living room. She said it started when she used to go downstairs and watch TV with her father. Later, A.G. said, Respondent-Father came into her room in the middle of the night and into the bathroom during shower time, that it would often happen at night and during shower time. She identified where other household members were when this was happening, including that her brother would be sleeping or playing video games, that sometimes C.G. would be in the room but would then leave, that the other family members would be downstairs. A.G. described Respondent-Father making her watch pornography while the sexual abuse was occurring on more than one occasion.
At the interview, A.G. said her father instructed her not to tell anyone or something bad would happen.
When Respondent-Father was questioned by Ms. Love, he denied the allegations. Although he admitted that he had gone into A.G.'s bedroom at 3:00am, he said that his purpose was to take away a computer tablet she was using.
Respondent-Mother also denied the allegations.
Ms. Love spoke with Mason, an adult sibling who resided in the home. He denied the allegations. He reported that he saw Respondent-Father go into A.G.'s bedroom but it was for the purpose of removing a computer tablet from her.
A.G. had reported that Respondent-Father often came into the bathroom while she was showering. Both Respondent-Father and Mason admitted that Respondent-Father had done that, and Mason admitted he held the door open for Respondent-Father, but they both said A.G. needed help with the water.
Ms. Love testified that A.G. disclosed to others, including her mental health counselor and to school personnel, that Respondent-Father had commented about her body, such as that her breasts looked good.
During the forensic interview, A.G. admitted that she had been coached by her mother in anticipation of the interview, that her mother instructed her not to tell anyone that Respondent-Father had done anything to her, but to instead say it was Uncle Mark who did these things. Respondent-Mother threatened A.G. that if she said it was Respondent-Father, she would end up in foster care.
A.G. reported that after her father was removed from the home, Respondent-Mother was crying all the time and blamed A.G. for him being taken out of the home. A.G. said that Respondent-Mother did not believe her statements about the abuse, and said to her "Don't you miss him?" and "Don't you want him back at home?" Respondent-Mother told A.G. she had a cyst on her brain that made her say this happened. Ms. Love testified there was no medical evidence of a cyst on A.G.'s brain.
Ms. Love has spoken to A.G. multiple times. A.G. has never recanted.
At the Forensic Interview, A.G. also disclosed that Uncle Mark is a pedophile, that she spoke on the phone with him often and some of the calls lasted for an hour, longer than her siblings. These calls were on Respondents' home phone. A.G. said that both of her parents knew that Uncle Mark was a sex offender and that he was calling and speaking with A.G. for long periods of time on the house phone. Uncle Mark told A.G. that when they got together he would kiss her, cuddle her, sleep in her bed with her and have sex with her.
A.G. believes Respondent-Father may have also sexually abused C.G..
Ms. Love testified that initially, Respondent-Mother refused to allow C.G. and D.G. to be forensically interviewed, but that she eventually relented. C.G. and D.G. were interviewed but made no disclosures about sexual abuse.
After the initial reports, two additional reports were made that were similar in nature. Ms. Love spoke with Respondent-Mother, but Respondent-Mother said she did not believe A.G.'s allegations. Respondent-Mother continued to coach A.G. to recant and continued to blame A.G. for Respondent-Father's absence from the home. Both reports were substantiated.
Initially, A.G. was removed to the home of her paternal aunt. However, she lived near the Respondent's home, a few apartments down on the same street. For A.G. to get to school, she had to walk by her mother's home. Ms. Love credibly testified that at times, Respondent-Mother and Mason would confront her saying things like "Are you telling stories about father?" and "Are you telling stories to the police?" Mason told A.G. to call her attorney and say she wanted to return home.
Ms. Love credibly testified that there were also concerns about C.G.'s treatment of A.G.. Even though A.G. was residing at her aunt's home, they attended the same school. C.G. also blamed A.G. for their father being out of the home and would yell at A.G. at school.
During the time A.G. resided with her aunt, A.G.'s mental health began to deteriorate, Ms. Love testified. A.G. was treating for an eating disorder and was taken to CPEP a couple of times for suicidal ideation. A.G. reported being mad and frustrated with her mother because Respondent-Mother blamed A.G. for her father being removed from the home and was trying to coerce her to recant, including accosting her on the street on her way to school. DSS therefore requested, and was granted, a removal to foster care. A.G.'s school placement was also changed as a result of the move so that she was no longer attending the same school as C.G..
Ms. Love testified that A.G. has been a lot happier since being placed in foster care. Every time Ms. Love has spoken with A.G., A.G. has expressed a desire to remain in foster care and not return home. A.G.'s mental health is much improved, she is no longer exhibiting the symptoms that led to her earlier CPEP admissions. Ms. Love would have concerns about A.G.'s mental health if she were returned to her mother's care and would have concerns for her physical safety if returned to her father's care.
The Department of Social Services seeks a finding of Severe Abuse. The Attorney for the Child, A.G., supports a finding of Severe Abuse against Respondent-Father and a finding of Abuse against Respondent-Mother. The Attorneys for the Children representing C.G. and D.G. argue that there should be no findings of Neglect or Abuse relative to their clients.
Conclusions of Law:
Family Court Act 1012 (c) defines "abused child" as follows:
"Abused child" means a child less than eighteen 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; allows, permits or encourages such child to engage in any act described in sections 230.25, 230.30 and 230.32 and 230.34-a of the penal law; commits any of the acts described in sections 255.25, 255.26, and 255.27 of the penal law; or allows such child to engage in acts or conduct described in article two hundred sixty-three of the penal law provided, however, that (a) the corroboration requirements contained in the penal law and (b) the age requirement for the application of article two hundred sixty-three of such law shall not apply to proceedings under this article.
Pursuant to Family Court Act 1046 (b)(1), the burden of proof for abuse is a preponderance of the evidence, and the burden of proof for severe or repeated abuse is clear and convincing evidence.
The evidence against both Respondents consists almost entirely of out of court statements by A.G., relayed through the witnesses along with documentary and video evidence. A child's out-of-court statements relating to the abuse or neglect alleged may be introduced at trial, and if sufficiently corroborated, will support a finding of abuse or neglect. Family Court Act 1046 (a) (vi). The statute broadly provides that "[a]ny other evidence tending to support the reliability of the previous statements shall be sufficient corroboration". Family Court is vested with considerable discretion to determine whether a child's statements have been sufficiently corroborated. Matter of D.G. C., 162 A.D.3d 1648 (4th Dept., 2018). Here, A.G.'s respective statements were found credible by the witnesses, In re Nicholas J.R, 83 A.D.3d 1490 (4th Dept., 2011); were consistently reported to more than one witness on more than one occasion, In re Nicholas J.R., supra; In re Breanna R., 61 A.D.3d 1338 (4th Dept., 2009); and were detailed descriptions of events, William J.B., Jr. v Dayna L.S., 158 A.D.3d 1223 (4th Dept., 2018). See also, Matter of Bryleigh E.N., 187 A.D.3d 1685, (4th Dept, 2020). Further, this Court observed A.G.'s forensic interview and found her to be credible. A.G. also made disclosures to school personnel and mental health professionals consistent with the statements she made at the forensic interview. It should be noted that "corroboration refers to the quantum of proof, and the amount of corroboration required in child protection proceedings is less than that applicable in criminal proceedings." In re Donna K, 132 A.D.2d 1004 (4th Dept., 1987). The Legislature has expressed a clear "intent that a relatively low degree of corroborative evidence is sufficient in abuse proceedings". Matter of Jessica N., 234 A.D.2d 790 (4th Dept., 1996), appeal dism'd 90 N.Y.2d 1008 (1997). This Court finds that A.G.'s statements have been satisfactorily corroborated.
The testimony of the DSS witnesses was not controverted in any manner. Neither Respondent appeared for Trial. Their failure to testify or present any proof can and should be held against them and supports the strongest possible inference against them that the opposing evidence permits. Matter of Ariana F.F., 202 A.D.3d 1440, N.Y.S.3d 661, 663 (4th Dept, 2022); Matter of Noah C, 192 A.D.3d 1676 (4th Dept., 2021); In re Raven B., 115 A.D.3d 1276 (4th Dept., 2014); Matter of Asianna NN. 119 A.D.3d 1243 (3rd Dept., 2014); Matter of Jayden B. [Erica R.], 91 A.D.3d 1344 (2012). There is ample evidence that Respondent-Father sexually abused A.G. to support this strong inference.
The trial court is in the best position to determine whether the record as a whole supports a finding of abuse. Matter of D.G. C., supra. As a result of the foregoing, this Court finds that the Department of Social Services proved by clear and convincing evidence, that Respondent-Father committed against his daughter the crimes of rape in the first and second degrees (Penal Law 130.35 and 130.30), criminal sexual act in the first degree (Penal Law 130.50), sexual abuse in the first degree (Penal Law 130.65) and incest in the first degree (Penal Law 255.25), and thereby established that A.G. was severely abused by him. FCA 1012; FCA 1046; Social Services Law 384-b(8)(d). See also, Matter of Ariana F.F., supra; Matter of Bryleigh E.N., supra.
Although neither C.G. nor D.G. disclosed any type of abuse by their father, pursuant to Family Court Act 1046 (a)(i)," 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, or the legal responsibility of, the respondent." Where the evidence with respect to one child who is found to be abused or neglected demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for another child in the parent's care, a derivative finding may be made. Matter of D.G. C., 162 A.D.3d 1648 (4th Dept., 2018); Matter of A.G.ica M., 107 A.D.3d 803 (2d Dept., 2013). Here, Respondent-Father's sexual abuse of A.G. establishes that there are such fundamental flaws in his understanding and execution of the duties of parenthood to justify a finding that he derivatively abused C.G. and D.G. as well. See, Matter of A.G. L.H., 85 A.D.3d 1637 (4th Dept., 2011), lv den., 17 N.Y.3d 711 (2011).
It is not alleged that Respondent-Mother knew the sexual misconduct was occurring before DSS became involved and her conduct does not meet the criteria of abuse. However, Respondent-Mother failed to meaningfully and appropriately address A.G.'s disclosures of sexual abuse.
Pursuant to Family Court Act 1012(f)(i)(B), a neglected child is a child less than 18 years old whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his/her parent or other person legally responsible for his/her care to exercise a minimum degree of care in providing the child with proper supervision or guardianship, or by unreasonably inflicting, or allowing to be inflicted, harm or a substantial risk thereof. The statute imposes two requirements for a finding of neglect which must be established by a preponderance of the evidence. First, there must be proof of actual or imminent danger of physical, emotional or mental impairment to the child. Second, any such impairment must be a consequence of a failure to exercise a minimum degree of parental care by the parent or person legally responsible for the child. This is an objective test that asks whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances. Matter of Afton C. [James C.] 17 N.Y.3d 1 (2011); Matter of Kayla V. 175 A.D.3d 1840 (4th Dept., 2019).
Where a reasonably prudent parent would have taken steps to protect her child from harm, see, e.g., In re Alexis C, 27 A.D.3d 646 (2d Dept., 2006), Respondent-Mother allowed A.G. to speak to Respondent-Father in violation of the safety plan, she allowed A.G. to speak to Uncle Mark for protracted periods of time knowing he was a pedophile, she coached A.G. to lie to interviewers to shield Respondent-Father from repercussions rather than support her daughter, she fabricated a story about a cyst on A.G.'s brain which would cause her to lie about these matters, she blamed A.G. for Respondent-Father being out of the home and repeatedly told her so, and even after A.G. was removed from the home, Respondent-Mother went out of her way to accost her on her way to school to try to convince her to recant or lie. The result of this conduct was a deterioration of A.G.'s mental health including suicidal ideation and multiple mental health hospitalizations. DSS has proven by at least a preponderance of the evidence that Respondent-Mother failed to exercise a minimum degree of care and therefore neglected the needs of A.G.. See, e.g., In re Derrick C, 52 A.D.3d 1325 (4th Dept. 2008), lv den., 11 N.Y.3d 705 (2008); Matter of Kaleb LL, 218 A.D.3d 846 (3d Dept., 2023); In re Alexis, 27 A.D.3d 646 (2d Dept., 2006).
Respondent-Mother's conduct also established a fundamental defect in her understanding of the duties and obligations of parenthood, creating an atmosphere detrimental to the physical, mental and emotional well-being of A.G.. These flaws are so profound as to place any child in her care at substantial risk of harm. Respondent-Mother has therefore also derivatively neglected C.G. and D.G.. See, e.g., In re Derrick C, supra; Matter of Charles Q., 182 A.D.3d 639 (3d Dept., 2020); Matter of Kaylene S., 101 A.D.3d 1648 (4th Dept., 2012); In re Alexis, supra.
NOW, THEREFORE, it is hereby
ORDERED, that A.G. is determined to be a severely and repeatedly abused child in accordance with the provisions of Family Court Act Article 10 by Respondent-Father, D.G.; and it is further
ORDERED, that C.G. and D.G. are determined to be derivatively abused children by Respondent-Father, D.G. by virtue of the acts committed against their sibling, in accordance with the provisions of Family Court Act Article 10; and it is further
ORDERED, that A.G. is determined to be a neglected child in accordance with the provisions of Family Court Act Article 10 by Respondent-Mother, R.K.; and it is further
ORDERED, that C.G. and D.G. are determined to be derivatively neglected children by Respondent-Mother, R.K. by virtue of the acts committed against their sibling, in accordance with the provisions of Family Court Act Article 10; and it is further
ORDERED, that all prior temporary Orders are hereby continued; and it is further
ORDERED, that this matter shall be scheduled for disposition on December 14, 2023 at 2:30pm in Part 6, Erie County Family Court.
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 APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.