Opinion
Index No. XXXXX
02-07-2022
In the MATTER OF J.E. and B.E.
Ms. Mary Katherine Cunningham, Esq. and Ms. Iman Akbar, Esq. for the petitioner, the Administration for Children's Services (ACS); Mr. Joseph Moliterno, Esq. for the respondent mother, W. J.; Ms. Mimi Lei, Esq. of the Legal Aid Society for the children.
Ms. Mary Katherine Cunningham, Esq. and Ms. Iman Akbar, Esq. for the petitioner, the Administration for Children's Services (ACS);
Mr. Joseph Moliterno, Esq. for the respondent mother, W. J.;
Ms. Mimi Lei, Esq. of the Legal Aid Society for the children.
Tracey A. Bing, J.
A petition was filed by the Administration for Children's Services (petitioner/ACS) on November 25, 2019, alleging that W. J. (respondent), neglected her children J. E. (fourteen years old) and B. E. (thirteen years old). Ms. Mary Katherine Cunningham, Esq. and Ms. Iman Akbar, Esq. represented ACS; Mr. Joseph Moliterno, Esq. represented the respondent; Ms. Mimi Lei, Esq. of the Legal Aid Society represented the children.
The petition alleges that the respondent failed to provide the children with proper supervision or guardianship by inflicting excessive corporal punishment. Specifically, and referring to the petition, it is alleged that according to the subject child B., on or about November 11, 2019 the respondent grabbed B. by the neck, pushed her against the wall and punched her in the face during an argument in the living room. The non-respondent father, J. E., walked into the living room and saw B. kneeling on the floor and crying. B. told her father that the respondent punched her. The respondent stated that she pulled B. by the arm out of her adult-sibling's bedroom during an argument with the adult sibling's girlfriend.
The Court held a virtual hearing via Micro Soft Teams during the pandemic. All witnesses and counsel appeared by video along with the jurist. On January 6, 2021, the fact-finding hearing commenced. The respondent was not present in Court. Counsel for the respondent did not participate at the commencement of the fact-finding hearing. On July 22, 2021 the respondent appeared in Court. The Petitioner rested submitting four exhibits into evidence and presenting the testimony from their only witness, Child Protective Specialist J. S. The respondent made an oral prima facie motion to dismiss the petition. The oral motion was denied on September 29, 2021. The respondent was provided an opportunity to present her case. The hearing ended on November 9, 2021 after the respondent's testimony. The attorney for the children rested without presenting evidence or witnesses. Counsel filed written summations by November 30, 2021.
The petitioner entered the following four exhibits into evidence:
Petitioner's No.1 B.’s birth certificate.
Petitioner's #2 J.’s birth certificate.
Petitioner's #3 New York Police Department certified and delegated records (thirty-three pages).
Petitioner's #4 Certified Bronx County Criminal Complaint against the respondent (three pages).
The Court does not consider hearsay statements within the admitted records unless a hearsay exception applies. The Court finds that there is no hearsay exception applicable to the hearsay statements contained within the records, namely the non-respondent father's account to the reporting law enforcement officer. The Court does not consider hearsay statements made by the non-respondent father to CPS J. S.
The Petitioner called Child Protective Specialist J. S. as a witness. Ms. J. S. testified that in November 2019 she spoke with the respondent mother, W. J., J. E. (non-respondent father), and the children B. and J. B. told Ms. J. S. that she was in the bedroom with her adult sibling ("A. S.") using his phone watching videos. The respondent told her to leave her adult sibling's bedroom. The respondent grabbed her by the arm to take her out of the room, then grabbed her by the neck and hit her in the face. B. stated that she fell down when she was punched. Her father came out of the bathroom into the living room and B. told her father that the respondent hit her in the face. J. spoke with Ms. J. S. on November 12, 2019. He told Ms. J. S. that he was in the lobby with his friends when he heard B. crying. He came upstairs. B. then told him that the respondent grabbed her by the neck and punched her in the face.
The respondent spoke with Ms. J. S. on November 12, 2019. The respondent told Ms. J. S. that she was cooking in the kitchen while the child B. was sitting on the sofa in the living room. She then realized that B. had gone to the adult sibling's room. The respondent did not want B. in A. S.’s room due to an unrelated family issue. The respondent went and grabbed B. by her arm and pulled her out of the room to sit on the sofa. The non-respondent father emerged from the bathroom and saw B. crying. B. told her father that the respondent hit her. Ms. J. S. did not testify about observations of bruises or marks on the child B.
There was no cross examination of the petitioner's witness. The petitioner rested. The Court denied the respondent's oral prima facie motion to dismiss the petition. On the adjournment date, the respondent presented her case.
The respondent testified that she was arrested on November 11, 2019 because she was having an argument with A. S.’s girlfriend. On cross-examination, the respondent testified that she was arrested for hitting and strangling her daughter, "yes, supposedly". The respondent testified that she was arguing with A. S. because she wanted him to remove his girlfriend from her home. During the argument the respondent grabbed B. from A. S.’s bedroom and placed her on the sofa. She then saw the non-respondent father call the police. The respondent testified that she grabbed B. by the hand/arm to take her out of A. S.’s bedroom after asking her to leave the bedroom approximately five times. She wanted B. out of the bedroom as the respondent was frustrated with A. S. and his girlfriend. The respondent did not want B. to hear or be part of an ongoing argument. The argument between the respondent and A. S. did not escalate to a physical altercation; it remained a verbal argument. The respondent testified that she sat B. on the sofa. After placing B. on the sofa, the non-respondent father came into the living room. Thereafter, J. came into the apartment.
At the conclusion of the respondent's case all parties rested. The attorney for the child subpoenaed the non-respondent father to testify. The non-respondent father did not appear in Court. The attorney for the child stated that she would not present the non-respondent father's testimony. The hearing concluded with written summations due on November 30, 2021. The Court reserved decision.
In summations, both the petitioner and the attorney for the child seek a finding against the respondent. The petitioner and attorney for the children argue that J. corroborated B.’s out-of-court statement. The petitioner argues that B.’s consistent statement to multiple sources supports the statement's credibility. The attorney for the children further argues that the respondent's accounts of what occurred and her arrest, together with the NYPD records corroborate the child's out-of-court statement.
In summation, the respondent argues that B.’s out-of-court statements are not corroborated. Other than the child's statements to the child protective specialist, her father and her brother, there is no proof that the respondent inflicted excessive corporal punishment on B.
Article 10 of the Family Court Act defines a neglected child as a child less than eighteen years of age "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of his parent or other person legally responsible for his care to exercise a minimum degree of care 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". ( FCA § 1012 [f] [i] [B] ).
There are two requirements imposed by the Family Court Act for a finding of neglect. A preponderance of the evidence ( FCA § 1046 [b] [i] ) must demonstrate that a parent failed to exercise a minimum degree of care. A minimum degree of care is an objective standard requiring the court to determine whether "a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing" ( Nicholson v Scoppetta , 3 NY3d 357, 368-370 [2004] ; see also Matter of Afton C. , 17 NY3d 1,4 [2011] ). There must also be proof of actual or imminent danger of physical, emotional or mental impairment to the subject child. Imminent danger must be near or impending, not merely possible ( FCA § 1012 [h] ; Nicholson v Scoppetta , at 368-370). To establish neglect, as well, the "impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child" (Nicholson v Scoppetta , at 370). Only competent, material and relevant evidence may be admitted at a fact-finding hearing (see FCA § 1046 (b)(iii) ). Even upon inquest, "these evidentiary requirements and standards must be met" ( Matter of T.G. , 53 Misc 3d 362, 363 [Family Ct, Kings County 2016] ).
Pursuant to article 10, "[c]hild protective authorities need not wait until harm actually befalls a child before they may intervene and the children may be deemed to be neglected by dint of future conduct on the part of the parent or other custodian so long as the risk to the children is ‘imminent’ " ( Dutchess Cty. Dep't of Soc. Servs. ex rel. John S. v. Peter B. , 224 AD2d 617, [2d Dept 1996] ).
The Appellate Division Third Department, relying on First Department case law held that "while parents are entitled to use reasonable physical force to promote discipline, "excessive corporal punishment" [ ] is specifically prohibited and constitutes neglect." ( Matter of Collin H. , 28 AD3d 806, 809 [3d Dept 2006], citing In re Anthony C. , 201 AD2d 342, 342-43 [1st Dept 1994] ). However, "the application of such force may not "exceed the threshold of reasonableness". [A] single instance of excessive corporal punishment can suffice for a finding of maltreatment. ( Matter of Maurizio XX. v. NY State Office of Children & Family Servs. , 125 AD3d 1174, 1175 [3d Dept 2015], citing In re Anthony C. ).
The Court had the unique opportunity to observe the demeanor of the witnesses during their testimony. The Court credits the witnesses’ testimony. Both the petitioner's and respondent's witnesses are credible. CPS J. S. testified to narratives shared with her by the children and the respondent. CPS J. S. did not provide personal observations of the facts alleged. The Court notes that CPS J. S. met with the children and family at least one day after the allegations in the petition occurred. CPS J. S. met with the respondent, non-respondent father and the children in person. There is no testimony from CPS J. S. that she observed any marks or bruises on B.
The respondent had to be redirected to only answer the questions before her during her testimony. This however does not diminish the credibility of her statements. Even during cross-interrogation, the respondent answered the questions asked without attempting to minimize that she was arrested, nor the reasons provided by law enforcement as to why she was arrested. The respondent denied that she hit or strangled her child. Her testimony of the facts remained consistent during direct and cross examination. Her testimony is not rebuttal testimony. The respondent denied the allegations. She did not provide excuses or defenses to her behavior. The respondent provided her version of the facts from the November 11, 2019 incident.
As a matter of standing, the Court finds by a preponderance of the evidence that the respondent is the mother of all subject children. This is based on Petitioner Exhibits #1 and #2 in evidence, the subject children's birth certificates. Both children are under eighteen years old.
The main issue before this Court is whether the petitioner proved the facts as alleged. The petitioner's evidence submitted to prove the facts rests on the child's out-of-court statements to multiple parties, including CPS, her father, her brother, and the district attorney's office as evidenced by Petitioner Exhibit #4 in evidence. The petitioner has the burden to prove the allegations in the petition by a preponderance of the evidence. (See In re Philip M. , 82 NY2d 238, 244 [1993] ). While this Court denied the respondent's oral prima facie motion on September 29, 2021, the petitioner must prove the facts alleged in the petition by a preponderance of the evidence at the conclusion of the hearing.
Family Court Act (FCA) § 1046 [a] [vi] provides that "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. 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 Court of Appeals In re Nicole V. dissects FCA § 1046 [a] [vi] and provides numerous examples of how a child's out-of-court statements can be corroborated. Corroboration may come in proof that the parent abused or neglected one of his other children; proof that injuries would not ordinarily be sustained but for acts or omissions of the parent; proof of substance abuse by the parent; hospital or agency reports; evidence of the emotional health of the parent; admissions by the parents, even if recanted; and medical diagnosis of the child among others. "Family Court Judges presented with the issue have considerable discretion to decide whether the child's out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding[.]" ( In re Nicole V. , 71 NY2d 112, 118-19 [1987] ). Out-of-court statements by a child may also be cross-corroborated by statements made by another child that corroborate each other. (See In re J. Children, 275 AD2d 648, 649 [1st Dept 2000] ).
Appellate Courts have held that "the mere repetition of an accusation by a child is not sufficient to corroborate his or her prior statement [ ] hearsay statements cannot be cross-corroborated by the out-of-court statement signed by the child under oath. Nor may [ ] witnesses vouch for the child's credibility." ( Matter of Sasha R. , 24 AD3d 902, 903 [3rd Dept 2005] [internal citations omitted]). "Although the child's repetition of the same allegations [ ] did not provide corroboration for the out-of-court statements, the consistency of her reported statements enhanced her credibility." Matter of Angelica A. (Carlos A.) , 161 AD3d 471, 471 [1st Dept 2018] ; see Matter of David R. (Carmen R.) , 123 AD3d 483, 484 [1st Dept 2014] ).
After review of the testimony and evidence, the court finds that the petitioner failed to prove the allegations pled in the petition by a preponderance of the evidence. The Court finds that B.’s out-of-court statements are not corroborated. The Court finds that under FCA § 1046 [a] [vi], the Court cannot enter a finding solely on the child's out-of-court statements without corroboration.
There is no testimony presented of witnesses with personal knowledge of the respondent punching and strangling the child B. on November 11, 2019. The statements made by the non-respondent father to law enforcement officers, as detailed in the NYPD Records (Petitioner's #3 in evidence) are hearsay statements that do not fall under a hearsay exception. The non-respondent father, Mr. J. E., did not provide testimony.
The child J.’s out-of-court statements to CPS J. S. do not cross-corroborate B.’s out-of-court statements. J.’s account is that he heard his sister crying, went upstairs to the apartment and found her in the living room crying. J. did not observe the respondent hit or strangle his sister. The Court cannot infer, not even under preponderance of the evidence, that because a child was observed crying, the child was hit, punched or strangled. J. did not make any statements regarding observations of B.’s nose or neck area. There is no testimony that J. or CPS J. S. saw bruising, swelling, or any physical anomaly suggesting that B. was hit, punched or strangled.
There are no medical or EMS records offered to prove that B. needed medical assistance after she was hit or punched in the face and strangled by the respondent. The NYPD records contain two very small black and white photographs (see page 22 of 33 of Petitioner Exhibit #3 PDF document). These photographs barely make out a silhouette. The Court cannot see any injuries, marks or bruises in these photographs. There is no testimony by the responding officer, although one is named in the petition.
The Court finds that the respondent's testimony does not corroborate B.’s out-of-court statements. The child B.’s out-of-court statements and the respondent's testimony offer two completely different set of facts regarding the respondent's actions. The fact that the respondent testified taking B. out of A. S.’s room grabbing her by her arm does not corroborate B.’s account that her mother hit and punched her in the face and strangled her. The respondent's testimony does not provide an admission to the child's out-of-court statements.
Further, the fact that the respondent was arrested does not corroborate the child B.’s out-of-court statements. It cannot be inferred that an arrest determines the factual truth of an alleged incident. An arrest does not prove that a person committed a crime. The petitioner did not provide a Criminal Court disposition or plea taken by the respondent that corroborated the child B.’s out-of-court statements. The criminal complaint includes out-of-court statements provided by B. under oath does not corroborate her statements. (Matter of Sasha R. ).
There is no proof provided that the respondent abused substances or suffered from mental health conditions as alleged in the petition.
The Court finds that the petitioner's reliance on the case law cited within her summation is without merit. In all of the cited cases, the child's out-of-court statements were corroborated by individuals with personal knowledge of the facts, or professionals with personal knowledge of the child's behavior while providing their accounts. The petitioner's reliance on in Matter of Angelica A. and other similar case law is flawed. In these cases, it is held that corroboration is the first step that the Court must assess before making a credibility finding. In all of the cases cited, there were multiple sources corroborating the child's out-of-court statements. The fact that the child's out-of-court statement is repeated many times does not corroborate the statement. The Court does not determine credibility without corroboration.
Based on case law, the Court finds that grabbing a child by the arm to take her out of a room after asking the child approximately five times to leave the room does not "exceed the threshold of reasonableness" in the physical force that parents are entitled to use to promote discipline. (In re Anthony C. ). As there is no further evidence of corroboration, the Court finds that B.’s out-of-court statements are uncorroborated. As such, the uncorroborated out-of-court statements of the child are insufficient to make a finding of neglect. ( FCA § 1046 [a] [vi] ).
For the foregoing reasons, the Court finds that the petitioner failed to meet their burden in proving that the respondent mother neglected her children as defined in Section 1012 of the Family Court Act by a preponderance of the evidence. For the reasons stated above, this matter is dismissed with prejudice.
This constitutes the decision and order of the Court.