New York Family Law Blog
The Nassau County Department of Social Services filed amended child abuse and neglect petitions against the father on behalf of his children who was four years and two and one-half years old at the time.
A New York Family Lawyer said the petitions alleged that on numerous and diverse occasions occurring prior to about October 27, 1987, the father had put his penis in the four year old child’s private part, inserted his fingers in her private part, and touched the private part of the two year old child. The petitions alleged that all of these acts threatened and endangered both children’s emotional health, safety and well being.
The allegations of abuse, heretofore described, were based on out-of-court statements made by the two children. It is well settled that out-of-court statements of a child relating to allegations of abuse are admissible at a fact-finding hearing and, if they are properly corroborated by evidence tending to support their reliability, may support a finding of abuse. A New York Custody Lawyer said in the instant proceeding, the Family Court held that the validation testimony of a social worker constituted sufficient corroboration of the afore-noted allegations of abuse.
A Nassau County Family Lawyer said the social worker testified on direct examination that she worked with the Family Crisis Clinic Program doing evaluations of physical abuse, neglect and child sexual abuse allegations and treatments of children and their families. The 40 to 45 validations in child abuse cases that she conducted were not done under any supervision, but were done jointly with her colleague. As she clearly stated, she and her colleague are doing it jointly, and her colleague does not supervise. More importantly, she testified that she used a standard guideline in her evaluations of the children. Indeed, one of the father’s witnesses, an expert in the field of child psychiatry, testified that as part of his training, he attended a two-day training seminar and also admitted that a handbook used in the training is considered the bible so to speak and her use of anatomical dolls was an accepted and good tool in determining cases of child abuse.
A Nassau County Custody Lawyer said the dissent also relies on the fact that the parents were involved in a bitter divorce, and that allegations by one parent against another concerning sex abuse of a child must be treated with great caution in that particular context. Suffice it to say, the social worker was fully cross-examined on this issue, as well as on her failure to examine the children in the presence of the parents, and nevertheless held steadfastly to the view that the children’s allegations were worthy of belief. The dissenter’s specific reliance on the fact that the mother carved an obscenity into the family car with a key was explained by the mother as a response to the father’s violent physical attack on her when she tried to leave the house and use the car. In any event, that incident is irrelevant on the issue of the social worker’s qualifications, competency and credibility. In a final attempt to discredit the social worker, the dissent alleges that her testimony was somehow fatally skewed since she was a member of the same Family Crisis Team which had originally referred this matter to the Nassau County authorities. This allegation is totally without foundation in the record. In short, the out-of-court statements of the children concerning the allegations of abuse were sufficiently corroborated by the testimony of the validator the social worker.
In its findings of fact, the Family Court summarized all of the relevant testimony including the corroborating validation testimony of the social worker and the medical testimony of the head of the Child Protection Team. The Family Court noted that the social worker had testified that the four year old child had sexual intercourse with her father and the two year old child was the victim of inappropriate sexual conduct by her father including touching her private part with his penis. The Family Court then made a finding based on the testimony of the social worker and the head of the Child Protection Team, who had testified that it was possible for a child of the age of two to four years old to have undergone digital penetration without leaving a mark on the hymen, that the petitioner has established the allegations in its petition by a fair preponderance of the evidence with respect to both children and the Court makes an affirmative finding of abuse and neglect against the respondent. Under the circumstances, it is clear that the Family Court complied with Family Court Act which provides that the Family Court shall enter an order finding that the child is an abused child or a neglected child and shall state the grounds for the finding of abuse and neglect. There is no requirement in Family Court Act that the Family Court, in its decision, must refer to each specific allegation of abuse and neglect in the petition. Consequently, there is no merit to the dissent’s argument that the Family Court’s order is defective as a matter of law in this regard. In any event, this omission, as well as the Family Court’s failure to make a further finding of the specific sex offense as defined in article one hundred thirty of the penal law, is of no serious moment. On the instant record, this court can, in order to save judicial time and avoid multiplicity of litigation, make the finding that the Family Court should have made. Accordingly, based on the afore-noted testimony of the social worker and the head of the Child Protection Team that the petitioner proved by a preponderance of the evidence that the father inserted his fingers in the four year old child’s private part and touched the two year old child’s private part, as alleged in the petitions is in violation of Penal Law.
However, the allegation of the father’s penile intercourse with the four year old child, even though corroborated by the social worker was not proven by a preponderance of the evidence. Specifically, the validator testified that based on her interviews and sessions, the four year old child was subject to penile intercourse with her father on at least several occasions. However, the petitioner’s medical witness, the head of the Child Protection Team testified that the four year old child had a normal prepubertal vagina. He observed a red spot and a tiny healed scar on the child’s hymen and noted that the hymen was open about five millimeters as measured. He admitted on cross-examination that a five millimeter opening was within normal parameters for a child of her age and that the red spot and the tiny scar could have been the result of several other causes, including a straddle injury such as climbing a fence or riding a bicycle. The medical witness of the respondent father confirmed that a five millimeter opening in the hymen was a normal finding for a child of her age, and noted that the two spots thereon were insignificant with respect to the issue of penile intercourse. The medical witness of the father further stated that if repeated instances of penile intercourse had taken place as alleged in the petitions, the hymen would show either a complete rupture or areas of tears or rips or scars over a period of time.
The dispositional order suspended the father’s visitation until he becomes involved in a program that specializes in incest offenders and completes said program. In so holding, the Family Court took the somewhat unusual step of rejecting the recommendation of the Nassau County Probation Department that supervised visitation with the father be continued. Since the Family Court’s disposition may have been based, in part, on a finding that the father engaged in penile intercourse with his child, and that finding has been specifically rejected by the court, it is deem appropriate to remit the matter to the Family Court for a new dispositional determination. The father’s remaining arguments are without merit.
If your children were abused and molested by your partner in the privacy of your own home, seek the legal help of the Nassau County Family Lawyer or the Nassau County Order of Protection Attorney from Stephen Bilkis and Associates. If you want to gain child custody to protect them from further harm, approach the Nassau County Child Custody Lawyer.