New York Family Law Blog
In this case, respondent mother is the mother of the four subject children. The father is the father of these children and a person legally responsible for them, resides in Grenada where the children resided with a maternal aunt and visited with their father until the summer of 2005. During the years that the twins resided in Grenada, they had telephone contact with respondent mother, however, they rarely saw her.
On January 4, 2007, New York City Children’s Services (hereinafter, “NYCCS”) filed abuse and neglect petitions against respondent mother and respondent father in Kings County Family Court. The petitions alleged that respondent father committed a sex offense against the child. The above incidents were alleged to be in violation of article 130 of Penal Law, including but not limited to §§ 130.20 (sexual misconduct),1 130.65 (sexual abuse in the second degree),2 and 260.10 (endangering the welfare of a minor).
The petitions further alleged that respondent mother knew or should have known of the sex abuse being perpetrated against the child and failed to take adequate steps to protect her or the other children and allowed the abuse to continue. The petitions alleged that in the summer 2006, the child told her mother about the sex abuse being perpetuated by respondent father against the child and respondent mother ignored her, did not believe her and told her, “Shhh … don’t worry about it.” The petitions also alleged that respondent mother told the NYCCS caseworker that she did not believe that the child was abused by respondent father.
The day the petitions were filed, the children were paroled to respondent mother under NYCCS supervision on the condition that she enforce the temporary order of protection against respondent father. That order excluded him from the home, directed that he stay away from the child and that he not commit any family offenses against her.
In considering the motion, the Court attempted to balance the right of the respondents to due process against the child’s need for protection. In addition, the Court considered its responsibility to establish a procedure that would maximize the likelihood that the child would give a full, honest and credible account of what, if anything, occurred between her and respondent father. Toward that end, by order and decision dated October 16, 2007, the Court denied the motion to exclude the respondents and ordered a hearing to permit NYCCS the opportunity to prove its assertions that requiring the child to testify in the presence of respondents would cause her emotional harm and trauma. The Court granted NYCCS leave to renew the motion to exclude at the conclusion of the hearing.
YCCS and the Attorney for the child seek a finding of sexual abuse against respondent father. They emphasize that the children gave independent and largely consistent out-of-court statements describing acts of sexual abuse and that those statements were corroborated by the victim’s testimony, as well as the report and testimony of the doctor. In addition, they assert that the inconsistencies were relatively minor and the circumstances of the recantation highly suspicious. Accordingly, they assert that the inconsistencies should be disregarded and the recantation found to be incredible and insufficient to undermine the credibility of the children’s original statements and the testimony in court testimony.
She initially ignored her daughter and then told her to be quiet. They emphasize that respondent mother took no action whatsoever until four months later when she finally took the child to see a doctor. Respondent mother denied the allegations to the caseworker.
Family Court Act § 1051 (b) provides the court with broad power to grant leave to amend a petition filed under article 10 of the Family Court Act. The companion to Family Court Act § 1051 (b), CPLR 3025 (c)states, “[t]he court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including the granting of … continuances.”
The question of whether to permit an amendment is left to the trial court’s discretion. If the proposed amendment does not set forth new facts, but merely adds an additional theory of recovery, leave should generally be granted.
In the instant case, the proposed amendment did not set forth new facts or even a different theory of liability. It merely expanded on the Penal Law sections allegedly violated. Respondents were provided with notice that additional sections of article 130 might be added by the language originally used in the petition, e.g., that respondent father’s actions “violated article 130 of the Penal Law, including but not limited to §§ 130.20 [and] 130.65.” In any event, after NYCCS moved to amend, respondents were provided with ample opportunity to prepare a defense to the amended allegations and failed to introduce any additional evidence. Accordingly, the motion to amend is granted.
Family Court Act § 1012 (e) (iii) defines a sexually abused child as a child less than 18 years of age whose parent or other person legally responsible for his or her care commits, or allows to be committed, an offense against such child defined in article 130 of the Penal Law or allows, permits or encourages such child to engage in any act described in §§ 230.25, 230.30 and 230.32 of the Penal Law (involving prostitution); or commits incest in the first, second or third degree. In cases brought under Family Court Act § 1012 (e) (iii), it is unnecessary to allege or prove harm or threatened harm to the child.
NYCCS alleges that respondent father sexually abused the child by committing acts of forcible touching, sexual misconduct, sexual abuse in the second degree, sexual abuse in the third degree, and endangering the welfare of a child. Forcible touching takes place when a respondent intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of gratifying his sexual desires. Forcible touching includes squeezing, grabbing or pinching. Sexual misconduct takes place when a respondent engages in sexual intercourse or oral or anal sexual conduct with another person without their consent; or engages in sexual conduct with an animal or a dead human body.
Sexual abuse in the second degree takes place when a respondent subjects another person to “sexual contact” when such other person is less than 14 years old. Sexual abuse in the third degree takes place when a respondent subjects another person to “sexual contact” without that person’s consent. Since Kyanna was less than 17 years of age at all relevant times, she was incapable of consenting to “sexual contact” of any kind.
“Sexual contact” is any touching of the “sexual or other intimate parts” of a person not married to the actor (Penal Law §130.00 [3]). “Sexual or other intimate parts” includes a person’s breasts. It also includes a person’s buttocks. The mouth, when used for kissing, is also an intimate part of the body.
Where sexual abuse or forcible touching is alleged, it is necessary to prove that respondent intended to gratify the sexual desire of either party. There is no requirement that actual gratification occur, but only that the touching be for that purpose. Because the question of gratification is a subjective one, this element may be inferred from respondent’s conduct or from the acts themselves.
After carefully evaluating the credibility of the various witnesses and considering the documentary evidence introduced, as well as the relevant case and statutory law, the Court finds that the victim’s testimony was sufficiently credible and amply corroborated to support a finding of sexual abuse against respondent father. The Court rejects respondents’ assertion that her testimony is unworthy of belief. The Court has considered the inconsistencies in her testimony as well as her attempt to recant and having had the opportunity to observe her demeanor as she testified under oath, found her to be largely credible.
Where allegations of sexual abuse are established by the testimony of a victimized child, contradictions and inconsistencies often occur. This fact must be viewed in the context of the entire record. The court must consider whether other evidence sufficiently corroborates the original allegations. Undue emphasis should not be placed on minor inconsistencies between the child’s trial testimony and her prior statements if her testimony is largely consistent and corroborated by other evidence.
In addition, where allegations of sexual abuse are established by the testimony of a child, recantation often occurs. A child’s recantation does not, however, require the court to accept the later statements as true. Rather, recantation of an earlier statement simply creates a credibility issue for the court to resolve. Where, as here, two children gave independent and largely consistent out-of-court statements describing sexual abuse, which are corroborated by one child’s testimony and the testimony of an expert, recantation may be insufficient to undermine the credibility of the children’s initial accounts.
The reluctance to discount earlier allegations of abuse because of a subsequent recantation applies with particular force where, as here, the child’s original out-of-court statements and her testimony were adequately corroborated and her subsequent attempt to recant was motivated by the pressure exerted upon her by her family.
The Court rejects respondents’ assertion that the victim’s recantation totally undermines her credibility. To the contrary, the Court finds respondent mother’s testimony about the circumstances under which recantation was made to be incredible and the recantation itself unworthy of belief. These findings are based on several factors.
Accordingly, the Court credits the child’s testimony about the incident of abuse that took place in the girls’ bedroom. That testimony was corroborated by sister’s statements, the doctor’s testimony and report, as well as victim’s prior out-of-court statements.
The allegations of sexual misconduct were not proven since there is no evidence establishing any acts of sexual intercourse, oral sexual conduct, anal sexual conduct or sexual conduct with an animal or a dead human body. Accordingly, the allegations regarding sexual misconduct are dismissed. The allegations regarding endangering the welfare of a child are also dismissed since that is not an enumerated offense under in Article 130 of the Penal Law. Consequently, it does not constitute a violation of Family Court Act §1012 (e) (iii). The Court, therefore, makes a finding of sexual abuse against respondent father for the victim, based on forcible touching and sexual abuse in the second degree.
Family Court Act § 1046 (a) (I) provides that proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other children of respondent. Even in the absence of direct evidence of abuse or neglect of the other children, a derivative finding is warranted where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care.
Although the statute requires that evidence as to the abuse of one child be considered on the issue of the abuse or neglect of other children in the home, such evidence is not conclusive and does not establish a prima facie case as to the other children. The determinative factor remains whether the nature of the underlying abuse or neglect, notably its duration and the circumstances surrounding its commission, evidences such a fundamental flaw in respondent’s understanding of the duties of parenthood that it can reasonably be concluded that the condition still exists.
Family Court Act § 1046 (a) (I) provides for a finding of derivative abuse and derivative neglect. A finding of derivative neglect is warranted where the evidence as to the directly abused child demonstrates such an impaired level of parental judgment and fundamental flaw in respondent’s understanding of the duties of parenthood as to place the non-target children’s physical, mental or emotional condition at substantial risk of becoming impaired. Where, however, the evidence as to the directly abused child demonstrates such impaired parental judgment that it creates a substantial risk of protracted impairment to the non-target children’s physical or emotional health, a finding of derivative abuse is warranted.
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