Opinion
Docket No. NA-XXXX-X/22
11-14-2022
In the Matter of Manuel R. SARAH R. v. Regina F. MANUEL R., Respondents. Children Under Eighteen Years of Age Alleged to Be Abused and Neglected by
New York City Administration for Children's Services By: Special Assistant Corporation Counsel Jessica Guilbeault, Esq. The Bronx Defenders - Family Defense Practice Attorney for Respondent Mr. Manuel R. By: Julie Kaplan, Esq. Joseph Santo, Esq., Attorney for the Respondent Ms. Regina F. Patricia Moreno, Esq., Attorney for the Child Sarah R. Youth Defense CenterAttorney for the Child Manuel R. By: Ronald Fisher, Esq.
Unpublished Opinion
New York City Administration for Children's Services By: Special Assistant Corporation Counsel Jessica Guilbeault, Esq.
The Bronx Defenders - Family Defense Practice Attorney for Respondent Mr. Manuel R. By: Julie Kaplan, Esq.
Joseph Santo, Esq., Attorney for the Respondent Ms. Regina F.
Patricia Moreno, Esq., Attorney for the Child Sarah R.
Youth Defense CenterAttorney for the Child Manuel R. By: Ronald Fisher, Esq.
Hon. Robert Hettleman, Family Court Judge
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 APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTERSERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.
For the reasons described in this decision, I find that the Administration for Children's Services ("ACS") has proven by a preponderance of the evidence that (1) the respondent Manuel R. repeatedly sexually abused the child Sarah and derivatively abused the child Manuel, Jr.; and (2) the respondent Regina F. neglected Sarah and derivatively neglected Manuel, Jr. by failing to respond appropriately or safely to Sarah's disclosures of the abuse.
I. PROCEDURAL POSTURE
ACS filed this petition on January 2, 2022. At intake on January 3rd, on the consent of all parties, I released Sarah to her non-respondent father and released Manuel, Jr. to Ms. Regina F. The trial began on May 11, 2022, and continued on May 23, 2022; May 25, 2022; August 2, 2022; and August 3, 2022.
Mr. Manuel R. and Ms. Regina F. are the biological parents of Manuel, Jr., but Mr. Manuel R. is not the biological father of Sarah.
At the trial, ACS called the following witnesses: (1) Meliton Vasquez, ACS Child Protective Specialist ("CPS"); (2) Lakirah Robinson, Sarah's therapist at Robins Psych; and (3) Rosemary Ieda-Gargano, a supervisor of Ms. Robinson at Robins Psych. ACS moved into evidence the following exhibits: (1) Petitioner's Exhibit ("Pet's Ex.") 1, Sarah's treatment records from Robins Psych; (2) Pet's Ex. 2, records from the New York City Police Department ("NYPD"); (3) Pet's Ex. 3, an Oral Report Transmission dated December 28, 2021, called in by Ms. Robinson; and (4) Pet's Ex. 4, the curriculum vitae of Ms. Ieda-Gargano.
The attorney for Ms. Regina F. called as witnesses (1) Ms. Regina F. and (2) CPS Judith Garcia. The attorney for Mr. Manuel R. called Mr. Manuel R. as a witness and introduced into evidence Respondent Father's Exhibit ("RF's Ex.") A, Sarah's treatment records from St. Barnabas Hospital; and RF's Ex. B, the curriculum vitae of Dr. Simonsson. The attorneys for Sarah and Manuel, Jr. did not support any findings in this case, and they presented no witnesses or evidence.
Sarah and Manuel, Jr. had separate attorneys throughout this case.
The parties all stipulated that Mr. Manuel R. was a "person legally responsible" for the child Sarah for purposes of this trial.
At the end of the evidentiary portion of the trial, the parties chose to submit written summations, and the case was adjourned to October 20, 2022, for my decision. On October 18, 2022, after all summations were submitted, counsel for Mr. Manuel R. filed an Order to Show Cause, seeking to re-open the trial due to the existence of new evidence. On, I granted the motion and briefly re-opened the trial. The attorney for Mr. Manuel R. called Dr. Estefan, a contracted psychiatrist from Abbott House, solely for the purpose of introducing into evidence RF's Ex. C, a Psychological Evaluation of Sarah done by mental health providers at Abbott House on September 2, 2022. All parties again rested, and counsel gave brief oral arguments in light of the new evidence. On the record that same day, I rendered my decision on the trial - briefly, with this written decision to follow - and made a Dispositional Order after hearing from all counsel.
II. THE EVIDENCE AT TRIAL AND CREDIBILITY FINDINGS
A. CPS Meliton Vasquez
I found CPS Vasquez to be a credible witness. He answered questions in a straightforward manner on both direct and cross, he displayed no apparent bias towards or against anyone involved in the case, and his testimony was corroborated by the other evidence at trial.
CPS Vasquez testified that on December 29, 2021, he met Ms. Regina F. in her home and informed her of the allegations in this case. Ms. Regina F. immediately responded that Sarah was lying because she had mental health issues, wanted more freedom, and had run away from home the previous weekend. CPS Vasquez testified that Ms. Regina F. admitted that Sarah had disclosed to her that Mr. Manuel R. had touched Sarah inappropriately and done sexual things to her. Ms. Regina F. continued that in response, she took Sarah to St. Barnabas Hospital for an emergency checkup. Ms. Regina F. said that when the doctors told her and Sarah of the results - that tests for sexually transmitted diseases ("STD's") were negative and that there were no findings of sexual abuse - Sarah was "unhappy" and said the medical findings were "lies." Ms. Regina F. ultimately told CPS Vasquez that she no longer wanted Sarah to remain in her home because Sarah was a danger to the other children. Ms. Regina F. advised that Sarah had gone to stay with her biological father, and Ms. Regina F. was content with that arrangement.
On December 29, 2021, CPS Vasquez also spoke to Sarah on a video call while Sarah was at her paternal aunt's home. At first, Sarah said that her relationship with Mr. Manuel R. was both "good and bad." CPS Vasquez asked for more information about Mr. Manuel R., but Sarah did not appear to want to talk about him. Sarah told CPS Vasquez that she did not want to be back in the family's home, but she stated that the other children were safe and that she did not want Manuel, Jr. to be removed from his mother's care. CPS Vasquez then asked Sarah again about the allegations, and Sarah disclosed an incident on December 17, 2021, where Mr. Manuel R. videotaped Sarah in the bathroom while she was getting ready for school. When she noticed this, Sarah closed and locked the bathroom door. Sarah stated that at the time of this incident, Ms. Regina F. was dropping off another child at the bus and thus was not at home, and Sarah said she did not tell her mother about the incident. Sarah next described that Mr. Manuel R. would bribe her to do "stuff." When CPS Vasquez asked for an example, Sarah said that if Ms. Regina F. had taken Sarah's phone away as a form of punishment, Mr. Manuel R. would give it back in exchange for "doing stuff" to him. When CPS Vasquez asked what "stuff" meant, Sarah said she did not want to discuss what "stuff" was. Sarah did not provide any more details about the alleged abuse during this conversation, and CPS Vasquez did not ask for more specifics.
Also on December 29, 2022, CPS Vasquez spoke to the four foster children who were in Ms. Regina F.'s care at that time: Aron, Ashley, Anthony, and Alyssa. CPS Vasquez testified that each child said that Mr. Manuel R. was good to them or that they had a good relationship with Mr. Manuel R. Ashley, Anthony, and Alyssa each stated that Mr. Manuel R. never made them uncomfortable. Ashley told CPS Vasquez that Sarah did not like Mr. Manuel R. Aron told him that Sarah had a bad relationship with Mr. Manuel R., that Sarah lied on Mr. Manuel R. and that Mr. Manuel R. did not touch her. However, CPS Vasquez did not ask Aron the basis or source of this information.
There were no objections raised to this testimony about the statements of these non-subject children.
B. Lakirah Robinson, Sarah's Therapist at Robins Psych
I found Ms. Robinson's testimony credible. She answered questions directly on direct and cross examination, she did not appear to exaggerate or overstate any of her testimony or observations, and her testimony was complimented by the records in evidence from Robins Psych. She gave some brief testimony that raised questions as to whether she has a bias in favor of Sarah or victims in general. For example, she said that she had never been involved in a case with false allegations and that her role as a therapist and mandated reporter is that when allegations are made, she must report them without knowing if patients are telling the truth. However, she also acknowledged that she is not always able to tell when someone is telling the truth to her and that the truth "does matter." In any event, I did not find that this point of view affected the substance or credibility of her testimony. The relevant portions of her testimony were not seriously disputed, and the conversations she described with Sarah and Ms. Regina F., as well as her observations of Sarah's demeanor, were confirmed by Ms. Regina F. and other evidence in the case.
Ms. Robinson was Sarah's therapist at Robins Psych from Sarah's intake in June of 2021 through January of 2022. The treatment sessions are documented in Pet's Ex. 1, described further below. When Sarah was initially evaluated - by Dr. Robins, not Ms. Robinson - she was diagnosed with major depressive disorder and anxiety. Ms. Robinson testified that during their sessions together, Sarah discussed numerous stressors in her life: trouble with peers, falling grades at school, family dynamics, her relationship with her biological father, going through a breakup with a girlfriend, the COVID-19 pandemic, and a rocky relationship with her mother, Ms. Regina F. The problems with Ms. Regina F. included poor communication, arguments, Ms. Regina F. punishing Sarah or taking away privileges (like her cellphone) and missing the more positive relationship she used to have with her mother. Sarah also reported a history of self-harm, including cutting herself as a coping mechanism.
Ms. Robinson testified that she spoke to Ms. Regina F. on the telephone on December 20 or 21, 2021. On that call, Ms. Regina F. discussed Sarah's having run away in the recent past. In addition, Ms. Regina F. stated that Sarah had run away the past Friday and returned home the next evening. Ms. Regina F. related that when Sarah returned home, she did not speak to Ms. Regina F. until the following day. Ms. Regina F. said that after that conversation, she took Sarah to a hospital to see if Sarah was sexually active because Sarah had been out with people that Ms. Regina F. did not know. She described that after the hospital performed their examinations, they informed Ms. Regina F. and Sarah that Sarah was not sexually active. Ms. Regina F. said that Sarah then left the family home to go to her biological father's home. During that phone call, Ms. Robinson recalled that Ms. Regina F. did not mention that Sarah had made allegations of sexual abuse against Mr. Manuel R. However, at some later point in time, Ms. Regina F. told Ms. Robinson that she did not believe Sarah's allegations about Mr. Manuel R., that Sarah had told Ms. Regina F. that Sarah was going to tell people that "my stepdad fucked me," and that Sarah was making up the allegations "out of spite" and in order to create a "difficult situation." Ms. Regina F. also told Ms. Robinson that she no longer wanted Sarah to live in the home.
Ms. Robinson further testified that on December 28, 2021, Sarah advised her that she was staying at her aunt's home, rather than with Ms. Regina F., because Sarah had run away the Friday before. Sarah disclosed that she had run away because, in part, she had been sexually abused by her stepfather. She described that on that past Friday, Mr. Manuel R. recorded her while she was in the shower. She further disclosed that she had been "molested" by him since she was 12 years old, and this included Mr. Manuel R. touching her private areas, forcing her to take off her clothes, and bribing her by saying things like, "If you do this, I'll give you your cellphone." Sarah stated that the abuse happened when Ms. Regina F. was at work or not at home, and that if Ms. Regina F. noticed that Sarah had her phone back - after Ms. Regina F. had taken it away - Mr. Manuel R. would tell Ms. Regina F. that Sarah was using it to do her homework so that Sarah would not get in trouble. Ms. Robinson described that when Sarah was discussing the sexual abuse, the child appeared uncomfortable, in a "low mood," and very sad ("sadder than normal"). As a result, Ms. Robinson did not "push her" for more details at the time. Sarah went on to state that she was depressed and cutting herself as a result of having reported the abuse.
That same day, Sarah also told Ms. Robinson that Sarah had told Ms. Regina F. about the sexual abuse but that Ms. Regina F. told Sarah she was lying. Sarah described this as another big stressor for her, as she was upset that her mother did not believe her. Sarah stated that Ms. Regina F. took her to a hospital for an examination, and the doctors stated that she had not been sexually active. In response, Sarah said she then left the hospital, went home to get her things, and left the home.
Ms. Robinson described that her next session with Sarah was on January 10, 2022, wherein Sarah described feeling guilty about having disclosed the abuse. Sarah stated that since her disclosure, many significant changes had happened: she was no longer living at home; she was no longer living with her mother with whom she had lived all of her life; she was not able to help take care of the foster children; and she was sad at being separated from her little brother. Overall, she stated she felt regret because she had caused all of these things to happen.
C. Rosemarie Ieda-Gargano, Supervising Therapist at Robins Psych
I found Ms. Ieda-Gargano to be credible in parts and less credible in others. ACS offered her as an expert witness in Clinical Social Work and Trauma-Focused Psychotherapy, and I deemed her to be such an expert. Ms. Ieda-Gargarno did not work with Sarah directly, but she supervised Ms. Robinson and reviewed the treatment notes relating to Sarah.
In her testimony, her initial expert opinion was that Sarah's symptoms and diagnoses were caused by being sexually abused. I do not find this particular aspect of her testimony or opinion to be credible or supported by the evidence or common sense. However, this rigid statement is a bit of a distraction in this case when viewed in the context of her entire testimony and all of the evidence at trial.
Almost immediately after offering this first opinion, and then throughout most of her testimony, Ms. Ieda-Gargano described with far more nuance that Sarah's diagnoses and symptoms were consistent with someone who had been sexually abused. She acknowledged that other difficult and traumatic events could also be the cause of or contribute to Sarah's presentation. That is, Sarah's self-reported struggles in school, Sarah's conflict and difficulties with her relationship with her mother, the breakup with a girlfriend, and her other experiences all could have played a role in Sarah's diagnoses and behaviors of anxiety, self-harm, and depression.
This aspect of her testimony and expert opinions was credible. Indeed, Ms. Ieda-Gargano's overall testimony mostly matched that of the defense expert, Dr. Simonsson. Dr. Simonsson also described that Sarah's diagnoses and symptoms were consistent with someone who had been sexually abused, while noting that it is almost impossible to attribute a patient's diagnoses and symptoms to one particular trauma.
The two experts supported and corroborated each other in other ways as well. They agreed that Post-Traumatic Stress Disorder ("PTSD") is common in patients who have been sexually abused but that many survivors of such abuse do not suffer from PTSD. Both experts acknowledged that they, themselves, cannot know whether Sarah's allegations are true or false. Both agreed that after Sarah's disclosure of sexual abuse, follow-up treatment would have been appropriate, although Sarah discontinued her treatment. In addition, both agreed that delayed disclosure is a common phenomenon in sexually abused children, as well as that numerous factors might affect when, how, and to whom a child might disclose.
Ultimately, the main source of disagreement between Ms. Ieda-Gargano and Dr. Simonsson was over whether Sarah's initial diagnoses - made at the time of her original evaluation at Robins Psych and months before her disclosure of sexual abuse - remained valid or relevant at this trial. Ms. Robinson and Ms. Ieda-Gargano testified that they did not see the need to formally re-evaluate Sarah. Rather, they intended to incorporate the allegations of sexual abuse into their treatment plan. On the other hand, Dr. Simonsson described that following such a disclosure, the appropriate professional standard would be to formally re-assess the diagnosis and treatment plan. The defense appears to argue that because the diagnoses pre-dated the disclosure, the diagnoses are not the result of proper treatment protocols and necessarily do not relate to, or take into account, sexual abuse at all. Therefore, they posit, these diagnoses cannot corroborate Sarah's out-of-court statements at this trial, and the issue casts doubt on the validity of Ms. Ieda-Gargano's opinions and the credibility of Ms. Robinson and Ms. Ieda-Gargano.
However, this disagreement about protocols misses the mark as it relates to this case and the law on corroboration. As noted earlier, I do not credit Ms. Ieda-Gargano's initial opinion that Sarah was sexually abused or that the child's symptoms can only be attributed to having been sexually abused. Indeed, Ms. Ieda-Gargano appeared a bit defensive about Robins Psych's treatment methodology, as well as overly-confident in believing that Sarah was, in fact, sexually abused. These factors cast some doubt on her overall credibility and the value of her expert opinion. But even if I discounted her testimony or expert opinions completely - which I do not, since there were credible and corroborated parts as well - the combined testimony of Ms. Robinson, Ms. Ieda-Gargano, and Dr. Simonsson, along with the totality of the evidence in the case, make clear that Sarah's symptoms and diagnoses, along with her behaviors, actions and statements in this case, are consistent with having been the victim of sexual abuse. Therefore, while Sarah's presentation might also be the result of the other trauma and difficulties in her life, or a combination of any or all of her experiences, her symptomology is consistent with someone who was sexually abused. It is uncontested that Sarah suffered from anxiety, depression, and self-harming cutting. And Ms. Ieda-Gargano was credible that survivors of sexual abuse frequently act out in ways such as self-harm and cutting, a decline in attendance and performance at school, the desire to run away from home, and strong feelings of guilt and confusion that can affect interpersonal relationships, including with peers and particularly with family members. Indeed, Dr. Simonsson confirmed much of this victimology in his testimony.
D. Ms. Regina F., the Respondent Mother
I found Ms. Regina F.'s testimony credible in some parts and not credible in others. Much of her testimony was clear, detailed, and the same on both direct and cross. To her credit, she acknowledged and admitted a number of acts that arguably damaged her defense, including her misguided effort to investigate Sarah's allegations herself, her failure to accurately report the allegations to law enforcement and medical providers, and her complete disbelief of her child's statements. At the same time, she appeared sincere in her love for Sarah, and she was corroborated in her description of the difficult period Sarah was going through in the period leading up to this case. However, significant parts of her testimony about crucial issues in the case were self-serving, and some key parts were self-contradicting and contradicted by other evidence in the case.
Ms. Regina F. testified that she has been in a relationship with Mr. Manuel R. for nine years. Although he never lived with Ms. Regina F. and her family on a full-time basis, Mr. Manuel R. came every week or so and stayed with the family for a couple of days and nights at a time. Over the years, a total of six children lived there regularly: Sarah, the four foster children, and Manuel, Jr., who was the son of Ms. Regina F. and Mr. Manuel R. Ms. Regina F. stated that Mr. Manuel R. is like a father to Sarah and takes care of her like she was his own child. Ms. Regina F. testified that her own relationship with Sarah was "beautiful" in the past, but they are having problems now. She described that Sarah was exhibiting behavioral problems such as not listening to teachers, smoking marijuana, and lying to her mother. Ms. Regina F. also related that Sarah did not have a good relationship with her biological father. She said that Sarah saw him occasionally but that he "never has time for her." In addition, Ms. Regina F. said that in the previous summer, Sarah's biological father hit Sarah in front of other people, as well as that Sarah has never described wanting to live with her father.
Ms. Regina F. stated that on December 17, 2021, Sarah left for school in the morning and did not come home until 10:30p.m. the next day. When Sarah came home, she went straight into her own bedroom and did not come back out until the following day, December 19, 2021. Then, Sarah approached Ms. Regina F. and disclosed that Mr. Manuel R. had been touching her sexually. Ms. Regina F. testified that she asked Sarah where he was touching her, and Sarah said her "asshole." Upon hearing this, Ms. Regina F. testified that she immediately took Sarah to the bathroom to "check the back of [her] booty hole." After doing so, Ms. Regina F. determined that Sarah's "butthole has never been touched," and Sarah replied that Ms. Regina F. did not believe her. Ms. Regina F. stated that later that same night, she called Mr. Manuel R. at work and told him what Sarah had said to her. Ms. Regina F. testified that Mr. Manuel R. came home that night but would not come inside the house. She described that he told her that the issue was for Sarah and Ms. Regina F. to figure out, and Mr. Manuel R. went to stay at his sister's house.
Ms. Regina F. testified that the next day, December 20, 2022, she took Sarah to St. Barnabas Hospital. On direct examination, Ms. Regina F. claimed that she told the doctors that Sarah needed gynecological and physical exams because she had been out all night on December 17-18 and that Ms. Regina F. did not know if anyone had touched her. But on cross examination, Ms. Regina F. testified that she did tell the doctors that Sarah said she was a victim of sexual touching and unwanted anal penetration. Notably, this was not reflected in the St. Barnabas records in evidence as RF's Ex. A.
Ms. Regina F. stated that she was present in the room while the doctors examined Sarah. Ms. Regina F. testified that the doctors told her there were no tears or lacerations and that Sarah has never been sexually active. Ms. Regina F. testified that Sarah told the doctors that she did not believe them, and later that day Sarah ran away from home. Ms. Regina F. called the police and reported that Sarah had run away. When asked on cross examination if she told the police that Sarah had reported sexual abuse, Ms. Regina F. acknowledged that she did not, stating that she "did not know she had to." Ms. Regina F. also testified that she ultimately told Sarah that she did not want her in the house, but Ms. Regina F. claimed that this would only be for the short term so as not to put the other children in danger and so Sarah could get the help that she needed.
On examination by Mr. Manuel R.'s attorney - and not on direct examination - Ms. Regina F. testified that when Sarah disclosed the abuse on December 19th, the foster child Ashley was with Sarah. In addition, Ms. Regina F. said that on December 21st, Ashley came into the living room and asked to speak to Ms. Regina F. Then Ashley said to her that she wanted Ms. Regina F. to know that Sarah asked her "to say yes to anything you asked me" about Mr. Manuel R.. Ms. Regina F. continued that Ashley stated that she did not want to say this in front of Sarah because she was afraid of Sarah. Ms. Regina F. then testified that the foster child Aron next came into the room and said that Sarah had told him to "say yes" to anything asked about Mr. Manuel R.. Ms. Regina F. said that she asked Aron if he had ever seen Mr. Manuel R. abuse Sarah and that Aron replied "no." Notably, Ms. Regina F. provided no additional context or information about these conversations, nor why the children came to her at that time and in such a sequential fashion. Also, the foster children did not describe any of this type of information to CPS Vasquez.
Again, there was no objection raised about the statements allegedly made by the non-subject children.
Ms. Regina F. testified unequivocally that she did not believe Sarah's allegations against Mr. Manuel R. This was, in part, because Ms. Regina F. believed that there needed to be physical evidence if Sarah were actually sexually abused and because she believed Sarah would have told her earlier if something like that had been going on. In addition, Ms. Regina F. suggested that Sarah's allegations against Mr. Manuel R. were made up because Ms. Regina F. had told Sarah, at some point in the past, that she was planning to move the family to Florida, something she claimed that Sarah did not want.
Ms. Regina F. also described the nature and frequency of Mr. Manuel R.'s contact with Sarah and the other children. Specifically, she stated that Mr. Manuel R. stayed with them for days at a time, sometimes on weekdays and sometimes on weekends. However, she was adamant that Sarah was never alone with Mr. Manuel R., not even once over the nine years that he had been with the family. She initially said that Sarah had not missed a single day of school during all of those years, but she then said Sarah had perfect attendance for about three of those years and that she could not be sure about more recent years because of the COVID-19 pandemic. Ms. Regina F. said that she never once ran an errand or left the home while Sarah and Mr. Manuel R. stayed behind, stating that all of the children went with her every single time she went out. This part of her testimony was not credible at all. It was self-serving - for both herself and Mr. Manuel R. - and defied common sense and experience. Indeed, even Mr. Manuel R. admitted, albeit reluctantly and confusingly, that he had taken Sarah to school and picked her up on at least one occasion, as well as that he had watched the foster children when Ms. Regina F. had gone out to run errands.
Finally, Ms. Regina F. testified that in May of 2022 - while the case was pending - she had a visit with Sarah, supervised by CPS Garcia. Ms. Regina F. described that at one point during the conversation, while they were discussing Sarah's aunt, Sarah told Ms. Regina F. that she had lied about the allegations in the case, that she "said it just to say it," that Mr. Manuel R. has always been a "dad" to her, and that she missed her mother.
E. CPS Judith Garcia
CPS Garcia was a credible witness, and her testimony was not disputed in any significant way. She testified that her work on the case occurred well after the abuse petition was filed. Specifically, she supervised a single visit between Ms. Regina F. and Sarah at a McDonald's on May 4, 2022. CPS described that when she arrived at the restaurant, Ms. Regina F., Sarah, and Manuel, Jr. were already present and talking. CPS Garcia stated that at one point in the conversation, Ms. Regina F. and Sarah were talking about how Sarah's father was treating Sarah well, but that Sarah's aunt was not, when Sarah "came out and said she lied" about the allegations. CPS Garcia stated that after Sarah made this statement, CPS Garcia asked no follow-up questions, and that Ms. Regina F. was quiet. CPS Garcia then testified that at some point afterward, she told Sarah that if whatever happened is true, she should stick to her story; but that if it is a lie, she would not get in trouble and should say the truth. CPS Garcia said that the conversation then turned to something else, and the visit continued without incident. At some point after Sarah's recantation, CPS Garcia heard Ms. Regina F. say to Sarah that she would be welcome back home at any time.
CPS Garcia was scheduled to supervise another visit between them on May 10th, but Sarah did not show up. As a result, CPS Garcia went to see Sarah at her school on or about May 11th. When she asked Sarah why Sarah had not attended the May 10th visit, Sarah stated that she had not been in the mood to speak to her mother because Ms. Regina F. did not believe her about the abuse allegations. CPS Garcia asked Sarah what had made Sarah tell her mother about the abuse in the first place, and Sarah responded that when she came back to the home after having run away, the child Ashley told Sarah that she had seen Mr. Manuel R. touch Sarah inappropriately and that Sarah should tell her mother. Then Sarah described to CPS Garcia that Mr. Manuel R. had sexually abused her, starting when Sarah was around 11 or 12 years old. She stated that on one occasion, Sarah had been sleeping while a back-up babysitter was there, and Mr. Manuel R. was in the home as well. One of the foster children (not the four foster children described at this trial) was sleeping in a crib in Sarah's room, and Sarah felt someone touching her. At first, she thought she was dreaming, but then she saw that it was Mr. Manuel R. Sarah described that after this incident, the touching happened again and eventually began to happen while Sarah was awake. She said that Mr. Manuel R. would reward her by giving her money or giving her phone back to her when Ms. Regina F. had taken it away, stating things like "you owe me." Sarah described oral sex with Mr. Manuel R. and other sexual contact until around the time that she finally disclosed the abuse. Sarah also related that Mr. Manuel R. tried to penetrate her vagina but that it was too tight, so he performed anal sex on her instead. Sarah said that there were times she came home early from school and Mr. Manuel R. was there, and thus they were alone with Ms. Regina F. out of the house.
Again, there was no objection to this evidence.
CPS Garcia testified that when she first met Sarah, during the May 4th visit, Sarah seemed happy and smiling, and Sarah was playing with her brother and talking freely with Ms. Regina F. However, when CPS Garcia saw Sarah the following week at school and during Sarah's redisclosure to her, the child's demeanor was "down" and unhappy. Sarah said she had an argument with her father the prior Friday and that he was going to give her up. Sarah stated that she had a lot on her mind, including the whole case, her relationship with her father, and a street fight she had with a group of girls that week. During the conversation at Sarah's school, CPS Garcia did not ask Sarah about the recantation from May 4th.
F. Dr. Peter Simonsson
Mr. Manuel R.' attorney offered Dr. Simonsson as an expert in the Treatment of Sexual Abuse in Children and PTSD in Children, and I deemed him to be such an expert. He was hired by the defense in this case and reviewed Sarah's records from Robins Psych and transcripts of testimony from this trial. He never spoke with Sarah or any witnesses in the case, and he reviewed no collateral information of any kind.
Dr. Simonsson's testimony was brief, and he essentially gave two expert opinions: (1) it is very difficult to attribute a patient's diagnoses of depression or related disorders to one specific trauma, and therefore one cannot necessarily attribute Sarah's diagnoses to sexual abuse; and (2) it would be proper protocol to re-evaluate a patient who discloses sexual abuse in order to ensure a proper mental health diagnosis.
He also noted that he does not "make assessments" about whether or not abuse happened. In addition, he gave expert testimony on a number of matters related to child sexual abuse in general, most of which mirrored the testimony of Ms. Ieda-Gargano. For example, he confirmed that delayed disclosure is very common with sexually abused children; he did not find it surprising that a child might disclose to a parent but then not disclose to a hospital or medical provider; and he confirmed that PTSD is a very prominent feature for survivors of sexual abuse, but that many survivors do not suffer from PTSD.
G. Mr. Manuel R., the Respondent Father
I found Mr. Manuel R. to be credible in some ways and not credible in others. He gave straightforward testimony on many topics. However, on the crucial issues of his relationship with Sarah and how much access he had to her, Mr. Manuel R. became nervous, hesitant, forgetful, and evasive. In addition, his testimony contradicted that of Ms. Regina F. in some important ways, and each parent clearly attempted to minimized Mr. Manuel R.'s access to Sarah.
Mr. Manuel R. testified that he has children of his own, as well as Manuel, Jr. with Ms. Regina F., and he has been together with Ms. Regina F. for nine years. He confirmed that he stayed in the family home regularly over that time period. He would spend a few days and nights there per week - and sometimes a few weeks at a time, including weekends - while spending other nights at his own mother's or sister's homes. He described the Frisco home as a two-bedroom apartment, and he and Ms. Regina F. slept in one room, Ms. Regina F.'s brother David Frisco slept in the living room at some point in time, and Sarah and the foster children all slept in the other bedroom.
He described his employment history. Beginning at some point in 2017, he worked five days per week on an overnight shift "upstate" with David Frisco, leaving home around 10:00pm and returning between 9:30-10:00am. In 2019, he testified that he switched to a daytime job as a handyman, working five days per week from 7:00am-5:00pm and sometimes on weekends. In 2020, he got a different handyman job, working five days per week from 8:00am-4:00pm. In 2021, he switched to a job at a school, working a shift from 11:00am-8:30pm.
Mr. Manuel R. stated that he and Ms. Regina F. had been planning to finalize the adoption of the foster children and then move the whole family to Florida. He also said that Sarah had advised him and Ms. Regina F. that she did not wish to move out of New York.
On direct examination, he described that on or about December 17, 2021, Ms. Regina F. woke him up at 6:30am to say she was taking Sarah and Ashley to school, and Mr. Manuel R. remained at home with Manuel, Jr. and the other foster children, who remained at home that morning because they had a half-day of school. That evening, Sarah did not come home, and Ms. Regina F. and Mr. Manuel R. tried to reach her. Around midnight, when Sarah still had not come home, they contacted the police. He continued that Sarah returned home on the 18th at around 10:00am or so, and then she went straight to her room and essentially stayed in her room all day. He described Sarah's behavior that day as "normal."
On cross-examination, he corrected himself and said it was 10:00pm, not the morning.
Finally on direct, Mr. Manuel R. denied all of the allegations made by Sarah, and he said he could not remember a single time that he was ever alone with her in the home.
On cross-examination, Mr. Manuel R. acknowledged that at least until this case began, he had a normal and positive "stepfather-stepdaughter" relationship with Sarah. He said that he took the children to school, picked them up, celebrated birthdays and other events with the family, and took trips with them. Notably, this included taking some of the children, including Sarah, to school on days that he was off from work. He stated that when he took Sarah to her high school in the Bronx, it was just Mr. Manuel R. and Sarah, since the other children attended school in Manhattan. But he said that they would all leave the house at the same time and that he took Sarah on a public bus, so he was still never alone with Sarah. He also said that he had picked Sarah up from her high school and brought her home on the bus, although on redirect he denied every bringing her home from school. When pressed for more detail, he said he could not remember how many times he took Sarah to school. On cross by ACS's lawyer, he ultimately stated that it was only one time, probably in 2021; on redirect by his own attorney, he testified that it was twice. He also acknowledged that Sarah attended school remotely from home during the pandemic, but he stated that he was never alone with her during that time either.
When he was asked more about his work schedule, he testified that for the handyman job he had in 2017-2018, he managed multiple properties in different areas around the neighborhood, but he denied ever going back home during the workday. He also said that he never had a single period where he was not working, that he always had his next job lined up before leaving a prior one, and that he never took any time off.
He did acknowledge that there were times when Ms. Regina F. ran errands and he stayed home watching the foster children. He could not remember how many times this happened, but he thought it was only once or twice. When asked specifically if he ever watched Sarah while Ms. Regina F. ran errands, he said he could not remember.
As with Ms. Regina F.'s, Mr. Manuel R.'s testimony about his access to Sarah was not credible. It defies common sense and experience that over nine years of part-time living with the family, he never once was alone with Sarah. It is not credible that he never had a single day off of work in nine years, given the existence of holidays, illnesses, and other emergencies that come up in everyday lives. Indeed, even with both parents making these sweeping declarations, they could not dispute that Mr. Manuel R. usually had weekends off, that Sarah did not always have perfect school attendance, that Sarah attended school from home during the pandemic, and that Mr. Frisco worked nights for a significant period of time and thus was home during the day. Likewise, Ms. Regina F. went so far as to essentially claim that every single time she left the home for any reason, she took all of the children with her. This is not credible, especially given Sarah's age, and Mr. Manuel R. contradicted this himself, begrudgingly conceding that he had been afforded at least some time with Sarah.
Notably, although ACS has the burden of proof in this case, neither Ms. Regina F. nor Mr. Manuel R. provided any corroborative evidence about their claims. They did not provide work records, school records, or testimony from anyone other than each other who might corroborate that Mr. Manuel R. had absolutely no access to Sarah.
H. Pet's Ex. 1, Sarah's Treatment Records from Robins Psych
These records are the session-by-session notes of Sarah's treatment from June 2021 to early 2022. At the intake evaluation in June, Sarah reported "a lot of stress around school and family [; that] about eight months ago she stopped doing her school work and went from an A/B student to failing some of her classes. Pt also reports getting into frequent arguments with her moth and is prone to angry outbursts. Pt states that the pandemic has been very difficult for her." She reported symptoms of "changes in mood, difficulties regulating her affect, frequent crying spells, anxiety, overthinking, ruminative thoughts, insomnia, low motivation, and social withdrawal after having a falling out with most of her friends. Pt also reports an intermittent history of cutting as a way to cope with her feelings." After testing and evaluation, she was diagnosed with "major depressive disorder, single episode, moderate" and "anxiety disorder, unspecified," and they recommended a course of therapy and treatment.
Sarah received intermittent therapy with Ms. Robinson throughout this time period, and the notes briefly summarize each session. Ms. Robinson regularly described Sarah as anxious, sad, nervous, fearful, and depressed. Sarah related numerous struggles in her life, including the death of a family member, beginning high school, conflicts with her mother, problems in her relationship with her biological father, and a breakup with a girlfriend. Ms. Robinson also held occasional joint sessions with Sarah and Ms. Regina F., and Ms. Regina F. described Sarah as rebellious. Sarah also endorsed feelings of wanting to hurt herself.
On December 20, 2021, Ms. Robinson spoke with Ms. Regina F., who reported that Sarah had run away. On December 28, 2021, Ms. Robinson had a session with Sarah where Sarah disclosed that she was sexually abused by her stepfather. Ms. Robinson wrote that Sarah expressed feelings of guilt about her disclosure, that this had affected Sarah's relationship with her mother and brother, and that Sarah had been cutting herself as a way of coping.
Ms. Robinson next met with Sarah on January 10, 2022. According to the records, Sarah appeared in "mild distress," stressed about "recent life transitions" following her disclosure, and "feeling sad due to 'losing her mom' and being unable to reconnect with her brother." Sarah said she was eating less, experiencing social withdrawal, and oversleeping.
On January 31, 2021, Ms. Robinson met with Sarah for the final time. Sarah appeared "smiling, more positive," and "in better spirits," and they discussed her current stressors and her estranged relationship with her mother.
I. Pet's Ex. 2, the NYPD Records
In a complaint follow-up report, an NYPD Special Victims Squad Detective described a December 20, 2021 interview of Sarah about the allegations. The report describes Sarah's allegations as follows:
She states that her step father has been touching her since she was 11 years old. When she was 11 years old she remembers him touching her breasts and buttocks. She would also remember him getting on top of her and rubbing his penis on her over the clothes.
When she was 13 years old (happened 1 week after her 13th birthday) she states that he had put Vaseline on her anus and inserted his penis into her rectum. She states that she remembers it hurting and also remembers him pulling his penis out of her rectum and ejaculating into a napkin. She then remembers wiping her buttocks and there begin blood on the toilet paper. She then states that he would do this often as payment for giving her things like money or her phone. It is unknown how many time this has occurred.
Around October 15, 2021, she remembers coming home from school around 6 and when she got home he stated to her that she owes him. And she can either go into the bedroom or the bathroom. So she went into the bathroom and removed all her clothes. The subject then walked in and picked her up and put her on the sink facing him. He then told her to open up her legs and he inserted his penis into her vagina. He didn't put it in all the way because as soon as he put it in she stated that it hurt. He then told her to relax and put it all the way in. She states that he had sex with her for about 20 seconds and when he realized that it hurt her too much he stopped. He then pulled up his pants, gave her phone back, and exited the bathroom. This was the only time he has ever put his penis into her vagina.
She also states that he would make her give him oral sex and also put his fingers into her vagina.
She also states that every time they did anything it was consensual and he never forced her to do anything. She looked at it as payment for him giving her money, allowing her to do things, or having her phone back after her mother took it away.Pet's Ex. 2, p.15 [sic].
J. RF's Ex. A: Sarah's Medical Records from St. Barnabas Hospital
The records reflect that on December 20, 2021, Ms. Regina F. brought Sarah to the hospital to check the child for sexual activity and STD's. Ms. Regina F. informed hospital staff that Sarah had left for school on Friday morning and not returned home until Saturday night, as well as that Sarah had been at a girl's house with several other kids. According to the records, neither Ms. Regina F. nor Sarah ever mentioned sexual abuse by Mr. Manuel R. or anyone else. In addition, it is not clear whether the evaluating practitioners were specialists in child sexual abuse or what equipment or methods they used, other than that they did not use a speculum.
Throughout the hospital visit, Sarah denied any sexual assault or sexual activity of any kind, although she did consent to a gynecological exam and testing for STD's. The exam was negative for STD's, and the gynecological exam revealed no bruises, lacerations, tears or bleeding in the vagina or anus.
K. RF's Ex. B: Abbott House Psychological Evaluation of Sarah from September 2, 2022
This report was entered into evidence through the treating psychiatrist, Dr. Estefan. No additional testimony or context was provided as to why it was done or under what circumstances, other than it was done virtually and that Sarah had a foster care worker with her at the time. It is titled "Psychiatric Evaluation Form," dated 9/2/22, it describes the duration as "60 minutes," and notes that Sarah "was interviewed by Tele Health Services." The first substantive section is "History of Present Illness," and it contains two paragraphs that appear to be self-reported by Sarah. The pertinent parts state:
[Sarah] said that she had an argument with her mother, and was upset, ran away from home and when she was found out she reported that she was touched by her stepfather. Pt made a paused and said, but I lied, I led to everyone, no one touched me I was upset now I caused a lot of damaged to people.... Minor stated that she is feeling sad, thinking about her lies and [other behaviors.]... Sarah reported that at the age of 13 or 14 she was admitted at Mount Sinai Hospital due to self cutting behavior. She is happy living with her aunt, but feels a lot of remorse, about her lies in the past.RF's Ex. B at p.1 [sic].
III. LEGAL STANDARDS AND FINDINGS
A. Parent / Person Legally Responsible
At trial, the evidence was undisputed that Mr. Manuel R. is the biological father of Manuel, Jr. and considers himself to be Sarah's stepfather, and all parties stipulated that Mr. Manuel R. was a person legally responsible for Sarah under the Family Court Act.
B. Sexual Abuse by Mr. Manuel R.
Under §1012(e)(iii) of the Family Court Act, an "abused child" is one "whose parent or other person legally responsible for his care... commits or allows to be committed an offense against such child defined in article one hundred thirty of the penal law...." FCA §1012(e)(iii)(A). At the trial, the legal elements of the sex crimes alleged were not contested, and there is no reasonable view of the evidence that the conduct alleged, if proven, would not constitute abuse under the Family Court Act.
C. Abuse by Ms. Regina F., a "Non-Offending" Parent for Failure to Protect Against
In evaluating cases against a "non-offending parent," appellate courts have looked at a variety of factors in assessing culpability. The First Department has made clear: "Where a parent knows about the ongoing abuse and fails to take steps to protect the child from further harm, the finding of abuse against that parent is appropriate." Matter of Maridas A. (Paula A.), 204 A.D.3d 511, 512 (1st Dept. 2022). Findings of abuse are clearly warranted for parents who have first-hand knowledge of the abuse due to observing it themselves, see Matter of Milagros C. (Rosa R.), 121 A.D.3d 481, 481 (1st Dept. 2014); for parents who should have known of the abuse, see Matter of Tania J., 147 A.D.2d 252, 257 (1st Dept. 1989); and for parents who were informed of sexual abuse and failed to separate the victim from the perpetrator. See Maridas A., 204 A.D.3d at 512; Matter of T.S. (K.A.-S.U.), 200 A.D.3d 569, 570 (1st Dept. 2021) (after disclosure, parents directed child not to tell anyone and failed to remove perpetrator from the home); Matter of Jaquay O., 223 A.D.2d 422, 422-23 (1st Dept. 1996) (mother ignored child's disclosure and did not separate daughter from stepfather).
Other factors include failure to seek appropriate mental health treatment, T.S. (K.A.-S.U.), 200 A.D.3d at 570 (abuse where parents ignored child's disclosure and "failed to ascertain why [child] was hospitalized on two separate occasions [and] to obtain help for her, even when notified she was cutting herself"); Matter of Sania S. (Marcia McG-W.), 143 A.D.3d 545, 545 (1st Dept. 2016) (abuse where mother failed to implement adequate measures to protect children from further harm and failed to seek appropriate therapeutic treatment); failure to pursue appropriate law enforcement action, Matter of Mary "S", 279 A.D.2d 896, 897 (3rd Dept. 2001) (neglect where mother was informed of abuse, reported one incident to police, but "took no other steps to halt the criminal sexual contact which she was aware had continued to occur"); failure to believe and support the child, Matter of Alexis C v. Valerie C., 27 A.D.3d 646, 648 (2nd Dept. 2006) (neglect where daughter told mother about sexual abuse, mother did not believe daughter, and mother did nothing further and allowed abuser to remain in home); Matter of Eric J., 223 A.D.2d 412, 413 (1st Dept. 1996) (neglect where mother "[failed] to acknowledge the implications of [the] facts and to create an environment where the children felt safe to confide in her and seek her assistance"); and failure to respond to signs or circumstances that indicate potential harm to a child. Matter of Mary MM. v. Leuetta NN., 38 A.D.3d 956, 957 (3rd Dept. 2007) (permitting child to be in presence of known sex offender and failure to undertake appropriate measures to protect); Matter of Christina P., 275 A.D.2d 783, 784 (2nd Dept. 2000) (parent failed to recognize child sleeping in bed with parent's paramour was inappropriate and led to abuse).
Overall, the test in abuse and neglect cases is how "a reasonable and prudent parent would have acted under the circumstances presented." Eric J., 223 A.D.2d at 413 (citations omitted). For non-offending parents in sexual abuse cases, such as those discussed above, some appellate court decisions have upheld findings of abuse, while others have upheld findings of neglect. The case law does not provide clear guidance for evaluating abuse versus neglect, except for abuse being clearly warranted when the parent knows of the abuse but permits it to continue. See Matter of Glenn G., 154 Misc.2d 677, 682-83 (Fam. Ct., NY Co., J. Schechter 1992). Otherwise, the decisions appear to reflect an evaluation of the degree of culpability on the part of the parent.
In this case, there are no allegations or evidence that Ms. Regina F. was aware of the abuse while it was going on nor that she should have been known about it prior to Sarah's disclosure. In addition, the evidence made clear that Ms. Regina F. loved and cared for Sarah, Manuel, Jr., and the foster children. She provided for the family, ensured that they attended school and appointments, and appears to have encouraged and participated in Sarah's therapy in 2021. When Sarah ran away from home around the time of the disclosure, Ms. Regina F. reached out to Sarah, Ms. Robinson, and the police to try to locate her. And when Sarah disclosed the actual abuse, Ms. Regina F. took some action - albeit misguided - in checking Sarah's body herself and taking her to the hospital for an examination.
However, not only were Ms. Regina F.'s reactions misguided, but they served to cripple Sarah's already-fragile mental state and prevented proper investigation, support, and treatment. Rather than talking through these dramatic allegations with Sarah and deciding upon an appropriate course of action, Ms. Regina F. hastily took Sarah into the bathroom and "checked her booty hole." After doing so, again without discussion or support, Ms. Regina F. flatly declared to Sarah that she had not been touched and was lying. The next day, she took Sarah for a medical exam, but she failed to provide the examiners with the most important pieces of information. Not only did this prevent St. Barnabas from doing a proper examination and interview, but it continued to send the message to Sarah that she should stay silent and not pursue the allegations. Likewise, Ms. Regina F. did not advise the police or Ms. Robinson of the allegations when she spoke to them, again prohibiting a full and appropriate response.
Ms. Regina F.'s immediate and then continuous feedback to Sarah was that she did not believe her and to discourage Sarah from seeking meaningful medical, law enforcement or professional help. See T.S. (K.A.-S.U.), 200 A.D.3d at 570; Mary "S", 279 A.D.2d at 897. Ms. Regina F.'s words and actions reinforced that if Sarah persisted with these allegations, Sarah would have to live elsewhere, whereas if Sarah agreed to remain silent, she would be welcome back home. See T.S. (K.A.-S.U.), 200 A.D.3d at 570. Importantly, even if a child were to make demonstrably false allegations of long-term sexual abuse, an appropriate parental response would be to at least seek assistance, information, and treatment in order to assess what might be causing such dramatic behavioral issues. Id.; Sania S., 143 A.D.3d at 545. Instead, Ms. Regina F. allowed Sarah to leave the only home Sarah had ever known, and Ms. Regina F. told Sarah, ACS, and anyone who would listen that she did not want Sarah back because she felt Sarah was a danger to the family. See Matter of David R., 123 A.D.3d 483, 485 (2nd Dept. 1994) (non-offending parent "dismissed the allegations of sexual and physical abuse and continued to show loyalty to [the offender], without concern for the children").
Sarah's recantations are also relevant to this analysis. Ms. Regina F. arguably pressured Sarah to recant the allegations as soon as she began to have visits during this case. But even if Ms. Regina F. did not actively encourage the recantations, her immediate response to the one on May 4, 2022, was that Sarah would now be welcome back home, furthering Ms. Regina F.'s message that Sarah should bury her allegations, her feelings, and her own mental health in favor of making everything right with Ms. Regina F. and Mr. Manuel R. T.S. (K.A.-S.U.), 200 A.D.3d at 570; David R., 123 A.D.3d at 485.
In sum, I find that the preponderance of the evidence proves that Ms. Regina F. neglected Sarah and Manuel, Jr. by ostracizing Sarah and failing to support her, immediately siding with Mr. Manuel R. without taking appropriate action, and failing to seek - and actively impeding - a full and fair investigation that would have better protected both children. See Alexis C v. Valerie C., 27 A.D.3d at 648.
D. Corroboration of a Child's Out-of-Court Statements
Here, the chief evidence at trial about the allegations of sexual abuse Sarah consisted of out-of-court statements made by Sarah. FCA §1046(a)(vi) governs this type of evidence:
[P]revious statements made by the child relating to any allegation 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 testimony of the child shall not be necessary to make a fact-finding of abuse or neglect....FCA §1046(a)(vi).
The leading case on corroboration of a child's out-of-court statements in Article 10 cases is Matter of Nicole V., 71 N.Y.2d 112 (1987). In that case, the Court of Appeals provided an extensive analysis of §1046(a)(vi), including reviewing its statutory history when it was amended in 1985. Under the older version of the statute, they noted that there had been confusion about what quality of corroboration was needed in Article 10 cases. However, the Court described that the new statute reflected the clear legislative intent that the more stringent "corroboration requirements of the criminal law are not applicable to article 10 civil proceedings...." Id. at 118 (citations omitted). The Court went on to hold that §1046(a)(vi) now "states a broad flexible rule providing that out-of-court statements may be corroborated by any other evidence tending to support their reliability.... The types of evidence listed in [§1046] are only illustrative; additional kinds may also be deemed adequate on a case-by-case basis." Id. (internal quotations omitted). The Appellate Divisions have reinforced that the corroboration requirement is a "flexible" one, see Matter of Astrid C., 43 A.D.3d 819, 821 (2nd Dept. 2007) (quoting Matter of Christopher L., 19 A.D.3d 597 (2nd Dept. 2005)), and the Third Department has ruled that "a relatively low degree of corroborative evidence is sufficient in abuse proceedings." Matter of Caitlyn U., 46 A.D.3d 1144, 1146 (3rd Dept. 2007) (quoting Matter of Joshua QQ., 290 A.D.2d 842, 843 (2nd Dept. 2002)).
Courts have considered many types of evidence to be corroborative of a child's out-of-court statements, including things that are not delineated in §1046. For example, among others: medical findings, see Matter of Laura W., 160 A.D.2d 585 (1st Dept. 1990); another witness' observation of injuries, Matter of Rico D., 19 A.D.3d 416 (2nd Dept. 2005); a respondent's admissions, Matter of X. MCC., 140 A.D.3d 662 (1st Dept. 2016); out-of-court statements made by other children alleging similar incidents, Matter of Joshua B., 28 A.D.3d 759 (2nd Dept. 2006) (citing Matter of Latisha W., 221 A.D.2d 645 (2nd Dept. 1995)); the testimony of an adult sibling that respondent had sexually abused her years earlier, Matter of Sha-Naya M.S.C., 130 A.D.3d 719 (2nd Dept. 2015) (collecting cases); Astrid C., 43 A.D.3d at 821 (report of similar allegations from the past made by another child of the respondents); evidence that "the victim was present at the home and in the company of respondent during the relevant time periods," Matter of Kole HH., 61 A.D.3d 1049, 1052 (3rd Dept. 2009); observations of a child's behavioral changes, Matter of Selena R., 81 A.D.3d 449 (1st Dept. 2011); Matter of Dorlis B., 132 A.D.3d at 579 (expert testimony about child suffering from depression, testimony about child's behavior in school, child's other consistent statements, and child's statements in medical records); Matter of Branden P., 90 A.D.3d 1186, 1189 (3rd Dept. 2011) ("relatives' testimony describing his changed behavior at the time of the alleged abuse") (citing cases); and "age-inappropriate knowledge" of sexual acts or behaviors. Matter of Cerenity F. (Jennifer W.), 160 A.D.3d 540, 541 (1st Dept. 2018).
In addition, a variety of types of expert testimony, opinion, and analysis have been found to be sufficient corroboration of a child's out-of-court statements. See Matter of Jason Alexander B. (Brenda S.), 195 A.D.3d 566, 567 (1st Dept. 2021) (corroboration by both expert opinion that "child suffered from [PTSD] related to her sexual abuse and trauma," as well as therapist's observation of child's "demeanor and behavior when discussing the abuse"); Dorlis B., 132 A.D.3d at 579 (testimony that child suffered from depression "consistent with sexual abuse and not otherwise explained"); Nicole V., 71 N.Y.2d at 119 (validation by an expert); Matter of Imani G. (Pedro G.), 130 A.D.3d 456 (1st Dept. 2015) (medical records describe child showing signs of depression, anxiety, and PTSD); Matter of Martha "Z", 288 A.D.2d 706, 707 (3rd Dept. 2001) (corroborated by "the school social worker's testimony as to [her] extreme emotional distress and dramatic changes in behavior following the incident [of sexual abuse]"); Laura W., 160 A.D.2d at 585 (evidence of PTSD as a result of sexual abuse). Indeed, some Family Court cases have often gone even further, permitting experts to provide an explicit opinion as to the credibility of a victim, arguably usurping the role of the judge at fact-finding. See Matter of Pearl M. v. Evelyn A., 44 A.D.3d 348, 349 (1st Dept. 2007) (corroboration where expert "concluded that [the child] had been sexually abused"); Matter of Hadley C., 137 A.D.3d 1524, 1525 (3rd Dept. 2016) (expert found child's account "was consistent with the accounts of known sexual abuse victims").
Another factor that courts have recognized as being supportive of the reliability of a child's statements is the consistency of a child's different out-of-court statements. See Matter of Krystal N. (juan R.), 193 A.D.3d 602, (1st Dept. 2021) ("consistency, detail, and specificity of the statements over time... enhanced their reliability") (citing Matter of Naitalya B. (Melissa B.), 150 A.D.3d 441 (1st Dept 2017)). "Although repetition [by a] child of the same allegations does not provide corroboration, the consistency of her reported statements enhances their credibility." Matter of Gabriel R. (Jose R.-Shameeza K.), 188 A.D.3d 501, 502 (1st Dept. 2020).
Applying these standards to this case, I find that, both legally and factually, Sarah's out-of-court statements alleging sexual abuse are corroborated and credible.
1. The details provided enhance Sarah's credibility
When Sarah was willing to discuss the allegations, her descriptions were detailed and specific:
• On December 20, 2021, in the interview with the NYPD Special Victims Detective, Sarah described the abuse in graphic detail, including when it began, how it progressed, several specific incidents, the nature of Mr. Manuel R. "bribing" her, and numerous idiosyncratic details, such as physical sensations, things that were said, and details of timing.
• On December 28, 2021, Sarah disclosed to her therapist when the abuse began, how it progressed, when the last incident was, that Mr. Manuel R. had recorded her in the shower the previous week, and specific details about the bribery and coercion.
• On December 29, 2021, after initially not wanting to discuss the allegations with CPS Vasquez, Sarah disclosed to CPS Vasquez the last incident from December 17th and the bribery to get her to do "stuff," although she did not want to say what "stuff" she was referring to.
• Finally, on May 11, 2022, Sarah disclosed to CPS Garcia details about when the abuse began, a specific instance of when there was a baby sleeping in Sarah's bedroom and a backup babysitter in the home, the nature and progression of the abuse, its continued occurrences until December of 2021, and about how he bribed her.
Sarah's ability to provide specific details and dates supports her credibility, as opposed to if she had only provided vague details of general abuse. See Nicole V., 71 N.Y.2d at 124 (specificity of details supported credibility). It seems unlikely that a child who is fabricating sexual abuse would go into so many specific details and incidents; rather, arguably, one would keep the details and the severity of the abuse to a minimum so as to avoid being caught lying. Indeed, a child who is making false allegations would be unlikely to include details such as a babysitter being in the home or that Mr. Manuel R. had recorded her on his cellphone, items that a 15 or 16 year old would assume could be investigated. In addition, Sarah's detailed descriptions are even more noteworthy in this case, where her disclosures occurred after she had already been taken to a doctor, failed to disclose the abuse there, and was examined and informed that there was no evidence of sexual activity. If a child were making up sexual abuse in order to frame an innocent person, and where she had been disbelieved by her own mother and informed by medical providers that there was no evidence to support her, it would make much more sense to withdraw the allegations or at least allege less-severe touching, such as groping or kissing, that would not likely yield any evidence.
No information was provided at trial about what investigative steps, if any, were taken by ACS or the police.
2. Sarah displayed some age-inappropriate sexual knowledge
Even for a 15 or 16-year-old, some of the details Sarah provided are arguably age-inappropriate. For example, Sarah described seeing blood on a tissue after wiping herself; that Mr. Manuel R. attempted vaginal sex but stopped when it appeared to be too painful for Sarah; that Mr. Manuel R. used Vaseline to lubricate Sarah's anus; that Mr. Manuel R. ejaculated into a napkin; and that he only attempted vaginal penetration one time and engaged in oral and anal sex on the other occasions. In addition, she described that he initially touched her while sleeping and then later while she was awake, as well as that the conduct escalated over time. Of course, it is not impossible that a teenager might be aware of some or all of these behaviors or patterns. However, the concepts of grooming children and escalating the contact over time, unsuccessful sexual activity, and bleeding are not ordinarily depicted in readily-available sources of pornography and sexual content, and there is no evidence of any kind that Sarah was sexually active with anyone else or had viewed or been exposed to such types of materials. See Cerenity F., 160 A.D.3d at 541.
3. Sarah's disclosures to different people over time were consistent
Sarah's out-of-court descriptions of the abuse were generally consistent with each other. Notably, she did not recite the same list of allegations verbatim to each person, which might suggest fabrication for a child recalling years of multiple acts of abuse. See Matter of Kimberly CC. v. Gerry CC., 86 A.D.3d 728, 730 (3rd Dept. 2011) (child's statements were consistent in detail, while not indicating a repetition of phrasing that might indicate coaching or coercion) (internal quotations and citations omitted). Her descriptions to her mother, the police, both CPS workers, and Ms. Robinson remained consistent overall: that the abuse began around the age of 11 or 12; it began as touching but escalated over time to primarily oral and anal sexual conduct; Mr. Manuel R. recorded her in the bathroom; it ended shortly before Sarah's initial disclosure to her mother; and he bribed or incentivized her with money or giving her back her cellphone when it had been taken away.
4. Sarah's demeanor when discussing the abuse supports her credibility
Ms. Regina F. described Sarah being upset when making the allegations and when Ms. Regina F. did not believe her. When Sarah learned that the medical staff at St. Barnabas stated that they did not find evidence to support her claims, she said they were lying and then ran away from home. Ms. Robinson described that when Sarah disclosed the abuse to her, Sarah was visibly uncomfortable, in a "low mood," and "sadder than normal." CPS Vasquez testified that Sarah initially refused to even discuss Mr. Manuel R. with him, and even when CPS Vasquez asked for additional information, Sarah did not want to describe what she meant by "stuff." Likewise, CPS Garcia described that when Sarah disclosed to her, the child seemed unhappy, sad, "not smiling," and not making eye contact - all of which was different from the first time CPS Garcia had met Sarah. Jason Alexander B., 195 A.D.3d at 567.
5. Evidence of Sarah's mental health symptoms and behaviors support and corroborate her allegations
As discussed earlier in this decision, I find that Sarah's mental health symptoms, diagnoses, and behaviors over time corroborate her out-of-court statements and allegations. To be clear, I do not find that the evidence supports the conclusion that Sarah's diagnoses are necessarily caused by sexual abuse. However, her self-isolating behavior, depression, anxiety, self-harming and cutting, decline in school attendance and performance are consistent with having suffered a significant trauma such as sexual abuse. Imani G., 130 A.D.3d at 456. While Sarah did disclose other stressors and significant struggles going on in her life, the longevity of the abuse appears to correlate, at least on some level, with the long-term existence of her symptoms and worsening behaviors. See Matter of Jaylyn Z. (Jesus O.), 170 A.D.3d 516 (1st Dept. 2019) (testimony that child's diagnoses and behaviors consistent with sexual abuse); Matter of Estefania S. (Orlando S.), 114 A.D.3d 453 (1st Dept. 2014) (same).
6. Sarah's statements are corroborated by Mr. Manuel R.'s opportunity to abuse her
The evidence proved that Mr. Manuel R. was a regular presence in the family's home and life for nine years, amounting to an opportunity to have abused Sarah. As discussed above, I did not find credible Ms. Regina F.'s or Mr. Manuel R.'s categorical denials of Mr. Manuel R. ever being alone with Sarah or any of the children, and all of the evidence in the case demonstrates that by being in the home for several days per week for a period of many years, he would have had ample opportunity to be alone with Sarah or in a position to abuse her. See Kole HH., 61 A.D.3d at 1052.
7. There is no evidence of a motive for Sarah to make false accusations
Crucially in this case, I find no evidence of a sufficient motive for Sarah to fabricate these allegations. While there was some testimony that Sarah might not have gotten along well with Mr. Manuel R. at all times, even Ms. Regina F. admitted that Sarah described him to be "like a dad" to her. Ms. Regina F. testified that her own relationship with Sarah was "beautiful" until recently, and Mr. Manuel R. testified that he and Sarah got along fine until the allegations were made. Sarah never mentioned any animus or complaints about Mr. Manuel R. during all of her time in therapy, in contrast to the fact that Sarah did discuss openly problems she had with her biological father.
Ms. Regina F.'s testimony suggested that Sarah fabricated these allegations either because Sarah is simply a liar in general who wanted to wreak havoc on the family, or perhaps because Ms. Regina F. was planning to move the family to Florida and that Sarah did not want this. As to the first defense, there is no evidence that Sarah is a pathological liar who would make up such sensational allegations for no significant reason. The therapy records reveal no such history or concern, and Ms. Robinson testified that she never observed any history of lying behaviors. Indeed, Sarah expressed to several adults' strong feelings of remorse and guilt for having disclosed the abuse at all, as she felt great sadness at having turned the family's world upside down, widening the wedge between herself and her mother, moving out from the only home she had ever known, and created problems for her brother and the foster children. These are not likely the feelings and behaviors of a pathological liar who said something "just to say it."
As to the second defense - the potential move to Florida - even if true, this hardly seems to be sufficient justification for Sarah's allegations in this case. Again, Sarah never discussed any concern about a move to Florida with her therapist or anyone else in the case. But even if she did wish to thwart those plans, it defies belief that she would do so in this manner. That is, as described earlier, a simple allegation of a touch or a kiss would have accomplished the same thing, without subjecting herself to medical examinations and repeatedly describing sexual penetration, bleeding, and other graphic details to ACS, medical personnel, police, and others.
In this same vein, if Sarah were making up these allegations to intentionally cause harm to other people, it makes no sense that she would have been hesitant to discuss them at any time, much less recant them several months later. The evidence is undisputed that Sarah chose not to say anything at all to the staff at St. Barnabas; she opened up only a little bit about the abuse to Ms. Robinson, and in a very hesitant way; she initially refused to say much at all about it to CPS Vasquez; she recanted the allegations to CPS Garcia; and she appeared "low" and refused to make eye contact when later describing the allegations to CPS Garcia. Further emphasizing this point is Sarah's description to the police that the sexual relationship was "consensual" and that she admitted to accepting money and her cellphone in exchange for engaging in the acts. It defies credulity and experience that a child who is fabricating sexual abuse by a stepfather would describe it in terms that would yield additional embarrassment or scorn upon herself and arguably less culpability for the accused.
Similarly telling is the fact that Sarah fled to her biological father's home after making the disclosure. That is, she did not run off to be with friends or pursue some hedonistic teenage lifestyle free of parents or adults. Rather, she went to seek refuge with family members with whom all agree she did not have a very close relationship. And when asked by ACS about safety concerns back in Ms. Regina F.'s home, Sarah described that she was the only one in danger and that Manuel, Jr. and the foster children were safe in the care of Ms. Regina F. and Mr. Manuel R.. Were she trying to maliciously damage her mother and stepfather, it is unlikely that she would have made this statement, and it is unlikely that she would have repeatedly expressed remorse and self-blame for having upended the family's lives, being separated from her mother, and causing chaos and problems for her sibling and the foster children.
Viewed in total, these are not the actions of someone seeking to achieve a particular goal such as preventing the family from moving to Florida or trying to damage Ms. Regina F. or Mr. Manuel R. Rather, as confirmed by both expert witnesses in the case, Sarah's actions are consistent with child sexual abuse victims who are confused, conflicted, distrustful, and fearful of upsetting the status quo for themselves and their families.
8. Sarah's recantations do not undermine her credibility
Sarah's recantations are an important factor in evaluating the reliability of her accusations. However, courts have recognized that recantations are common in cases of child sexual abuse, and they do not necessarily mean that the allegations are false. See Matter of Frantrae W. v. Fred W., 45 A.D.3d 412 (1st Dept. 2007) (recantation did not invalidate child's allegations); Tania J., 147 A.D.2d at 257. In this case, Sarah's recantation on May 4th seems likely to be the result of either direct pressure from Ms. Regina F. or at least the sadness stemming from the disruption of their relationship. In any event, only a week later, she redisclosed the abuse in detail to CPS Garcia.
As for her statements in the September 2nd evaluation, that session was held via telehealth and was of a very short duration, and the report appears to consist solely of Sarah's short narrative. There is no evidence that the evaluator asked any questions or had any information about the accusations, the recantation, or the situation. When viewed in the context of all of the evidence in the case, I find that Sarah's recantations are not truthful but rather reflect her victimization by a parental figure. Both of the recantations seem to be the result of her powerful feelings of conflict, guilt, and remorse from the abuse itself; from having upended her own life and the lives of her family members by disclosing; and from the pressure put on her by Ms. Regina F.
9. The lack of medical findings do not undermine Sarah's credibility
The defense summations also attack Sarah's credibility based upon of the lack of medical findings from St. Barnabas Hospital. However, as Ms. Ieda-Gargano testified, a lack of physical injury or evidence does not mean that a child was not abused. See Matter of Dora F., 239 A.D.2d 228 (1st Dept. 1997) (the absence of physical evidence does not preclude a finding of sexual abuse) (citing Matter of Jaclyn P., 86 N.Y.2d 875 (1995); Matter of Skye B., 185 A.D.2d 880 (2nd Dept. 1992)); see also People v. Diaz, 189 A.D.3d 1063, 1064 (2nd Dept. 2020) (expert testimony that physical findings are rare in child sex abuse cases and not necessary to establish abuse). In addition, there was no evidence as to what type of examination was done at St. Barnabas - that is, whether it was done by an expert who specializes in evaluating child sexual abuse, what equipment was used, and whether the exam might have been done differently had Sarah disclosed any sexual activity.
10. Sarah's disclosures were "prompt outcries"
Under the "prompt outcry" doctrine, a finder of fact can consider evidence that a complainant reported the allegations at the first suitable opportunity to do as supportive of the complainant's credibility. See People v. Shelton, 1 N.Y.3d 614, 615 (2004). However, case law has evolved to hold that the "first suitable opportunity" is a relative concept, particularly in cases of long-term sexual abuse of children. See, e.g., People v. Stuckey, 50 A.D.3d 447, 448 (1st Dept. 2008) (disclosure at the end of a two-year course of sexual conduct); People v. Vanterpool, 214 A.D.2d 429 (1st Dept. 1995) (child's disclosure three weeks after incident). In this case, Sarah's disclosures occurred within a week of the final act of abuse and following several years of ongoing conduct. I find that her prompt disclosure corroborates her out-of-court statements as well.
I note that even if an appellate court were to find that these disclosures were not "prompt," or that the "prompt outcry" doctrine is not applicable in this case, I find that the other corroboration in the case is sufficient.
11. Sarah's allegations made to Ms. Robinson are independently admissible
Generally, a patient's out-of-court statements made for the purpose of medical treatment are admissible for their truth under the medical records exception to the hearsay rule. Williams v. Alexander, 309 NY 283 (1955). In 2010, the Court of Appeals revisited and expanded this exception to include statements that are germane not only to medical treatment, but also to mental health treatment, safety planning, and other forms of medical and mental health services. People v. Ortega, 15 N.Y.3d 610, 618-19 (2010); see also Matter of Luis P., 161 A.D.3d 59, 76 (1st Dept. 2018) (child's statements about sexual abuse admissible). Recently, the First Department specifically ruled that statements made to treating mental health personnel at a mental health facility are admissible under this exception. Matter of E.H. (M.H.), 2022 NY Slip Op 5950 (1st Dept. 10/25/22) (citing cases).
In this case, Sarah's statements to her treating social worker fall under this exception and therefore are admissible independent of FCA §1046. Id. Therefore, this evidence also serves as corroboration of her other out-of-court statements. Id.; Matter of Taveon J. (Selina T.), 2022 NY Slip Op 05512 (1st Dept. 10/4/22) (child's out-of-court statements corroborated by child's otherwise admissible excited utterance to 911).
In sum, I find Sarah's out-of-court statements to be credible, reliable, consistent, and corroborated by the other evidence in the case. Accordingly, the preponderance of the evidence proves that Mr. Manuel R. sexually abused Sarah for a period of several years, including touching her in a sexual way; engaging in vaginal, anal, and oral sex with her; recording or attempting to record her in the shower; and manipulating her by giving her money and access to her cellphone.
E. Derivative Abuse of Manuel, Jr.
Based on the above findings, I find that the child Manuel, Jr. was derivatively abused by Mr. Manuel R. and derivatively neglected by Ms. Regina F. The Family Court Act makes clear that "proof of abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any child of, or the legal responsibility of, the respondent." FCA §1046(a). The statute does not require proof of actual injury or direct harm with respect to siblings. See, e.g., Matter of Kylani R., 93 A.D.3d 556 (1st Dept. 2012). A derivative finding of abuse is "predicated upon the common understanding that a parent whose judgment and impulse control are so defective as to harm one child in his or her care is likely to harm others as well." Matter of Marino S., 100 N.Y.2d 361 (2003); see also Kylani R., 93 A.D.3d at 557 (citing cases).
Here, Mr. Manuel R.'s sexual abuse of Sarah, along with his manipulative behavior of bribing her and interfering with Ms. Regina F.'s disciplinary actions, demonstrates such "a fundamental defect in parenting as to place the other children in substantial risk of harm." Matter of Dayanara, 101 A.D.3d 411, 412 (1st Dept. 2012) (citing Matter of Joshua R., 47 A.D.3d 465 (1st Dept. 2008)); see also Kylani R., 93 A.D.3d at 557.
Likewise, Ms. Regina F.'s failure to take appropriate action in the face of Sarah's disclosures, failure to support Sarah, blindly siding with Mr. Manuel R. at the expense of Sarah's wellbeing, and continued efforts to encourage Sarah to remain silent or recant the allegations all demonstrate a similar fundamental defect in parenting. Indeed, Ms. Regina F.'s failure to acknowledge the seriousness of the situation, including Mr. Manuel R.'s manipulative, deceptive, and abusive behaviors in the home, put Manuel, Jr. in direct risk of harm.
IV. CONCLUSION
For all of the reasons described in this opinion, the preponderance of the evidence proved that (1) Mr. Manuel R. is the father of Manuel, Jr. and a person legally responsible for Sarah; (2) Mr. Manuel R. sexually abused Sarah, including violating P.L. §130.25(2) (Rape in the Third Degree); P.L. §130.40(2) (Criminal Sexual Act in the Third Degree); P.L. §130.45(1) (Criminal Sexual Act in the Second Degree); and P.L. §130.65(4) (Sexual Abuse in the First Degree); (3) Mr. Manuel R. derivatively abused Manuel, Jr.; and (4) Ms. Regina F.'s actions in this case amount to neglect of Sarah and derivative neglect of Manuel, Jr..