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In Matter of Department of Social Servs.

Family Court, Nassau County
Jul 2, 2008
2008 N.Y. Slip Op. 51604 (N.Y. Fam. Ct. 2008)

Opinion

08.

Decided July 2, 2008.

Office of the County Attorney, Rachael Rayzak, Deputy County Attorney, Westbury, NY, Brent Albala, Esq., Hicksville, NY, Attorney for Respondent.

William Cadel, Esq., Westbury, NY, Attorney for the Child.

Nancy Bernheim, Esq., North Massapequa, NY, Attorney for the Child.


Before the Court are four Article 10, child abuse proceedings brought by the Department of Social Services (hereinafter referred to as "DSS") against the respondent, Jim P.

The respondent, Jim P., is charged with sexually abusing the child, Jane H. The remaining three petitions are filed as derivative petitions on behalf of John H., Mary S. and Michael S. John H. is the target child's brother. The S. children are the cousins of the H. children.

The petition alleges that:

a)Respondent, legally responsible person, Jim P., has committed or allowed to be committed sex offenses against such child, as defined in the penal law. Respondent has failed to provide said child with proper supervision or guardianship, and said child's physical, mental and emotional condition have been impaired and/or are imminent danger of becoming impaired as a result of the failure of the respondent to exercise a minimum degree of care, requiring the aid of this Court, to wit:

b)Up until about 4/27/07, on multiple occasions, respondent Jim P. told Jane H. to come upstairs and to lay down, on her bed. He proceeded to: touch said child; made her touch his penis; placed his penis in her vagina; made the child perform oral sex on him, became erect and ejaculated in her mouth. Respondent Jim P. lived in the family home and was a regular caretaker for children. Respondent Jim P. committed or allowed to be committed sex offenses against such child, as defined in the penal law. It is likely that John H., Mary S. and Michael S. will suffer in a similar manner.

c)Respondent Jim P. has repeatedly sexually abused Jane H. in her room. On multiple occasions, respondent Jim P. has digitally penetrated Jane H.; touched her "private" area; and told the child not to tell anyone. Respondent Jim P. lived in the family home and was a regular caretaker for children. Respondent Jim P. committed or allowed to be committed sex offenses against such child, as defined in the penal law. It is likely that John H., Mary S. and Michael S. will suffer in a similar manner.

d)On or about 5/1/07, Jane H. had findings consistent with sexual abuse at a SCAN examination. It is likely that John H., Mary S. and Michael S. will suffer in a similar manner.

A fact-finding hearing was held over a number of dates: March 5, 2008, March 18, 2008 April 28, 2008, May 13, 2008 and May 29, 2008.

The Presentment Agency, DSS, called four witnesses; Michelle Nadobny, the DSS caseworker, Veronica Schauder, the social worker at the children's school, Dr. Bella Silecchia and Linda H., the mother of the subject child. The respondent, Jim P., called two witnesses; Amy B., the paternal grandmother of the subject child and Edith H., the child's paternal aunt and girlfriend of the respondent.

It is alleged that the acts of sexual abuse took place in the child's residence. It is clear from the testimony of all witnesses that an extended family lived together in the home of the paternal grandmother, Amy B. Living with her are her son Jake H., his wife Linda H. and their two children, the subject child Jane H. and John H. Also living in the home is Amy B.'s daughter, Edith H. and her two children, Mary S. and Michael S.

The respondent, Jim P., is Edith H.'s boyfriend who was living with her in the home during the time these allegations were to have occurred. Jim P. is also referred to as Al and Uncle Al. Jill, eighteen years old, is a fifth grandchild of Amy B. who also lives in the home. She is described as extremely developmentally delayed, needing round the clock care.

The home is described as a two level, five bedroom home. It is clear from the testimony of all witnesses that Amy B.'s bedroom is on the first floor, and that Linda H. and Jake H.'s bedroom is also on the first floor next to Amy B.'s room. Jill's is the next room.

It is described that the stairs leading to the second level are behind a wall, not visible upon entering the house. In fact, Amy B. testified that, "If I didn't tell you I had an upstairs, you wouldn't know it because the stairs are behind the wall."

The testimony indicates that Jane H. and John H. live in an open area at the top of the stairs, which is described as a den area. The room that Edith H. shared with respondent, Jim P., is up the stairs to the left. The room that the S. children live in is to the right of the H. children's room. It is necessary to walk through the H. children's room to get to the room that the S. children live in.

Edith H. and Jim P. have a door to their room. The S. children's room also has a door. The open area which is Jane H. and John H.'s room does not have a door.

There was extensive testimony as to the morning schedules and routine, as the allegations by Jane H. were that the sex abuse took place in the morning when the children went to computer class while she was suspended from school.

It is clear that during the relevant time period, Amy B. worked two jobs. She worked from 11:00 P.M. to 7:00 A.M., arriving home each morning at approximately 7:30 A.M. She testified that she doesn't leave for her next job until about 10:00 A.M. and returns home at approximately 4:00 P.M. in the afternoon.

Edith H. worked each day from 7:00 A.M. until 3:00 P.M., leaving approximately at 6:30 A.M. and returning home at approximately 3:30-3:45 P.M.

Jake H. worked evenings from 5:00 P.M. until 10:00 P.M. and Linda H. did not work. The testimony indicates that there were some mornings that Jake H. would be awake and, if so, would take the children to school. But it seems that the majority of the mornings, Jake H. and Linda H. would be sleeping and have nothing to do with readying the children for school. In fact, the testimony indicates that on most days Jake H. and Linda H. would sleep until 4:00 P.M. in the afternoon.

Amy B. testified that Jill left the home at approximately 8:00 A.M. and returned about 4:00 P.M. in the afternoon.

While nobody can state exactly when Jim P. moved into the residence with Edith H., there is some testimony that he lived there a year before the disclosure of sex abuse, which would be since the Spring of 2006. There is other testimony that he moved in in the Fall of 2006. Despite this inconsistency, it is certain, however, that he was living with Edith H. in the residence in the Fall of 2006 until April 2007 when the disclosure was made.

The testimony indicates that the respondent was not employed when he first moved in, but when he became employed later on, he would leave the house for work around 9:30 A.M. and got off work around 5:30-6:00 P.M. It is not clear when he became employed.

It is clear from all the testimony that during the 2006/2007 school year, the children would leave the home at approximately 8:30 A.M. to arrive at school at 8:40 A.M. The school is located down the block.

Amy B. testified that she arrives home from work at 7:30 A.M. She testified that it was she who got the children ready for school. She indicated that she would wake the children each morning by yelling up the stairs. She was very clear that except for one or two times a year, she never went upstairs. She testified that the respondent was involved each morning in getting the children ready for school. She very clearly indicated that he would often make breakfast for the children and often took them to school. There was additional testimony that Jim P. was often alone with the children in the capacity of a babysitter, and that on at least one occasion, took them to the park.

It was also established that during the 2006/2007 school year, Jane H., Mary S. and Michael S. attended computer classes on Monday and Wednesday mornings and that they would leave the house at 7:30 A.M. on those mornings.

Linda H. testified that in the 2006/2007 school year, Jane H. was suspended four or five times. She went on to say that Jane H. wasn't herself during this time period; that she was quiet and wasn't playing with the rest of the kids. This prompted her to speak with her daughter, Jane H., on April 21, 2007. At that time she had a conversation with Jane H. to find out what was bothering her. The child responded that a child in school was bothering her. The mother inquired further to learn in what way the child bothered her and asked if anyone was touching her. When Jane H. responded, yes, the mother asked where, and specifically asked if they were touching her in her private areas. Jane H. said yes. Linda H. testified that Jane H. seemed scared to say who touched her so she "ran down" a list of men that had been around her, including her father and brother. When she got to Jim P.'s name the child said yes to Jim P. but had not said yes to anyone else who had been listed.

Jane H. told her mother that the respondent touched her between her legs.

Linda H. indicated that after Jane H.'s disclosure, she "became mad . . . just lost it" and was taken to Nassau University Medical Center (hereinafter referred to as "NUMC").

Linda H. testified that Jane H. said it happened on a day when she was suspended from school and the other children had computer club.

The Presentment Agency called Veronica Schauder, the school social worker at Jane H.'s school to testify.

She testified that she had worked with Jane H. on a regular basis for crisis and behavioral intervention. She stated that Jane H. had some behavior problems beginning in Kindergarten and was referred to the school support team made up of the principal, school social worker, school psychologist and teachers. Veronica Schauder testified that Jane H. had some problems with listening; that she would run out of the room without permission and have tantrums. Veronica Schauder also testified that it was necessary to cut Jane H.'s day short in Kindergarten due to her behavior.

Veronica Schauder testified that Jane H. had been suspended in Kindergarten in May of 2006. She also reported that she was suspended during first grade in November 2006, February 2007 and two suspensions in March of 2007 and that the suspensions were out of school suspensions usually for a day or two.

When asked on cross-examination if Jane H. was ever caught bringing either alcohol or pornography to school, she testified that she had no knowledge of either, and indicated that she would have known if this happened, as it is a part of her duties to keep this type of information.

Veronica Schauder testified that she met with Jane H. on April 26, 2007. Veronica Schauder indicated that Jane H. was visibly upset. When asked what was wrong, the child said her mother was in the hospital because she got upset when Jane H. said she was touched. The child then disclosed to Veronica Schauder that Uncle Al had touched her in her private area in the front and that he put his finger in her hole and that it hurt and she had trouble urinating.

Significantly, Veronica Schauder testified that after the disclosure on April 26, Jane H.'s negative behaviors did not continue.

The Presentment Agency also called Michelle Nadobny to testify.

Michelle Nadobny was the caseworker at the time the incident involving the respondent and Jane H. was alleged to have occurred. Michelle Nadobny testified that she started working as a caseworker in September of 2001 and had been assigned to the sex abuse unit for about a year when she was assigned this case. She indicated that she had six months of training when she was first employed by DSS and that she had additional training designed specifically for the sex abuse unit. She stated that at the time of this case she had been involved in thousands of cases. Michelle Nadobny testified that she received a report dated, April 26, 2007, alleging that Jim P. sexually abused Jane H.

Michelle Nadobny reported that she then went to the case address on the same date that the report was received and arranged to meet the child, Jane H. at the Coalition Against Child Abuse and Neglect for the following day.

Amy B., the paternal grandmother, brought Jane H., for an interview at the Coalition on April 27, 2007.

Michelle Nadobny testified that while building a rapport with Jane H., she asked her some preliminary questions, such as, her name, her school and she asked the child why her mother was in the hospital. The child's response to this question was, "that her mother got fussed because Al was touching me."

Michelle Nadobny then reported that the child said, "he touched me on my private," pointed to her vaginal area and said, "it burns when I pee."

When asked further where it burns, the child responded, in her hole where he sticks his finger. She said Al is the person who sticks his finger in her hole and that it hurts when she peed because he sticks his finger in her hole.

Jane H. told Michelle Nadobny that this happens when the children go to computer club in the mornings when she was suspended from school.

Jane H. said it happened in her room while she was suspended from school. She indicated that Al called her upstairs to lay down on her brother's bed. She said that he opened her legs with his hands and told her to touch his private. The child reported that he started to make her suck it and she said it felt hard. She referred to Al's private as his wee-wee. She reported that he puts his private in her mouth and pees in her mouth, describing the pee as white and that she has to swallow it. Michelle Nadobny further testified that Jane H. said that Al told her not to tell anybody, and that if she told her mother, he would lie and nobody would believe her.

Jane H. testified that this happened the first time when she was six years old in her room. The child further stated that, "he lays on me when he puts his private in my private, that it felt bad when he put it inside and that she wants him to get off."

The child said she is told to drink it, swallow it, spit it which gets her all mixed up as what to do. Michelle Nadobny testified that Jane H. reported that this happened ten times. She reported that her mother was downstairs in the room during one of the incidents.

Michelle Nadobny was clear in her testimony that Jane H. offered this information spontaneously when she asked why her mother was in the hospital. The Presentment Agency also called Dr. Bella Silecchia, who examined Jane H. on May 1, 2007 at the Child Advocacy Center in Garden City.

Dr. Silecchia testified that she is a pediatrician at NUMC, in charge of the Pediatric Ambulatory care services and has been the director of the Suspected Child Abuse and Neglect Evaluation Program since 1990. She reported that she has been licensed to practice medicine in New York since 1975 and is Board Certified in pediatrics. Dr. Silecchia testified that while Jane H. was agitated and somewhat uncooperative, making the exam difficult, she was still able to conduct the exam.

Dr. Silecchia described her exam and specifically spoke of the hymenal contours. She indicated that for her age, Jane H.'s hymen was extremely narrow in their contours; that the bottom portion of the hymen was extremely narrowed as if it had been stretched out which she indicated does not occur naturally in a girl.

She testified that the findings were consistent with the history, and that the cause of a narrowed hymen is penetration through the hymen. Dr. Silecchia also testified that she examined the child's anus and found normal findings. When asked on cross-examination as to the percentage of children with a narrow posterior rim, Dr. Silecchia answered, "essentially none in children who have not been sexually abused." Dr. Silecchia further testified that she did not believe this injury to be self-inflicted, but that it was "consistent with digital penetration with an adult size finger or fingers and also penile penetration probably partial." The medical records were moved into evidence.

The respondent called two witnesses, Edith H. and Amy B.

In addition to testifying as to the members of the household, the layout of the house and the morning routine, Amy B. gave testimony characterizing Jane H. as a problem child, indicating that she did not believe her granddaughter's accusations against the respondent.

She testified that Jane H. "steals, lies and acts out in school. She got kicked out of Pre-K. She couldn't stay in Kindergarten all day because she acted out so badly."

Amy B. testified that she caught Jane H. watching pornography when she was four years old and that she caught her with pornographic videos and alcohol in her backpack trying to take them to school. She reported that Jane H. had numerous suspensions from school, indicating that she knew this because she is the one who got the phone calls from the school when they weren't able to get in touch with the parents. She indicated that she would have to call the house to wake up the parents and then go to school to pick up Jane H.

Additionally, Amy B. testified in reference to Jim P., "I just don't think he's that type of person." Although, on cross-examination, Amy B. admitted that she really did not know anything about Jim P.'s background.

Amy B. further testified that she did not believe there was any opportunity for this to have taken place, yet on cross-examination, Amy B. indicated that a couple of years ago, on the occasion that she caught Jane H. watching pornography in her parents' bedroom, Jane H. had been doing so for about ten or fifteen minutes before Amy B. became aware of it.

She also indicated that she believed this happened only because Linda H. was going through a psychotic episode.

Edith H. testified that she was out of the house at a carnival when she learned that she had to go home because something was wrong with Linda H. She returned home to find Linda H. in what she described as a "manic' state; saying all types of crazy stuff."

Edith H. testified that when she got home, she heard Linda H. accusing many men of doing something to Jane H.

In response to questioning by the Attorney for the Child, Edith H. stated, that she did not report to the police that Linda H. had accused anyone else of these acts of sexual abuse. She did indicate, however, that she reported it to Child Protective Services, but "that they didn't want to acknowledge it."

Edith H. also testified that Jane H. had many behavioral problems; "temper tantrums, outburst, sexually inappropriate."

Edith H. described an incident when Jane H. taught her son to have sex when they were both about five years old. She stated she found them in the bedroom on the top bunk without any clothes on. Her son said Jane H. was teaching him a game. She indicated that they were in that room about ten to fifteen minutes before she checked on them.

Legal Analysis

Family Court Act § 1012(e) defines an "abused child" as one who is less than 18 years of age whose parent or other person legally responsible for his care, (iii) commits or allows to be committed an offense against such child defined in Article one hundred thirty of the Penal Law.

§ 1012(g) defines "person legally responsible" as "the child's custodian, guardian, or any other person responsible for the child's care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child."

It is undisputed from the testimony of Linda H., Edith H. and Amy B. that the respondent, Jim P., was continually living in the house with this extended family at the relevant time. While there is some question as to whether he moved in during the Spring or Fall of 2006, it is certain that he was living there in September of 2006.

It is clear from the testimony that while he was living with this family, Jim P. was very involved in the morning routine, often giving the children breakfast and on many days taking the children to school. Amy B. also testified that Jim P. took the children to the park on at least one occasion and that he had acted in the capacity of a babysitter on numerous occasions.

As such, the Court does find that the respondent, Jim P., is a person legally responsible for the care of all the subject children.

Family Court Act § 1046(a)(vi) states that "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence. The law requires, however, that the child's statement alone, unless corroborated is not enough to make a finding of abuse or neglect."

The statute goes on to say that "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."

In Matter of Nicole V., 71 NY2d 112, 524 NYS2d 19 (1987) the Court held that the reasoning for corroboration of a child's statement is not that the child's statement is not reliable but that out-of-court statements are hearsay and that the statute requires further evidence to establish the reliability of hearsay statements. It has been further held that corroboration is to be viewed on a case by case basis and that "Family Court Judges presented with the issue have considerable discretion to decide whether the child's out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding of abuse." Matter of Christina F., 74 NY2d 532; 549 NYS2d 643 (1989); Matter of Nicole V., supra .

In the case before the Court, the child, Jane H., made an initial statement to her mother, then a statement to Veronica Schauder, the school social worker and finally a detailed statement to Michelle Nadobny, the caseworker for DSS.

As previously stated, Jane H. described with great detail what Al did, indicating that this happened "while she was suspended from school when the other children went to computer class and further that it happened on her brother's bed."

The Court does find that Jane H.'s statements of sex abuse are sufficiently corroborated to support a finding of sexual abuse by the respondent, Jim P.

Firstly, the child reported that the sex abuse took place while she was suspended from school and was home in the morning when the other children went to computer club. It has been confirmed by the testimony of the family members that, in fact, the other children did go to computer club on some mornings and that on at least one occasion Jane H. was the only child home on school suspension. Veronica Schauder confirmed that the school had suspended Jane H. in the Fall of 2006.

It is also clear from the testimony that the opportunity to commit these acts most definitely did exist, despite the belief by Amy B. that it is not possible.

Both the layout of the house and the morning routine were described a number of times during this fact-finding hearing. It is clear that the child's bedroom where she states this abuse took place is in an upstairs room. While the bedroom is an open area, it cannot be seen unless one is standing at the top of the stairs.

The stairs are described as behind a wall and hidden from view. It was absolutely clear from the testimony that while five adults live in the home, Edith H. is out of the house at 6:30 A.M., Linda H. and Jake H. sleep all day and have been known not to respond to a ringing telephone, leaving only Amy B. and Jim P. Amy B. is only in the home from 7:30 A.M. until approximately 9:30 A.M. or 10:00 A.M. and has testified that she sometimes takes a nap after the children leave the house, at either 7:30 A.M. or 8:30 A.M. depending on whether they have computer club. Additionally, Amy B. was adamant that with the exception of once or twice a year, she never goes upstairs. This leaves Jim P. with the opportunity to commit sexual abuse, as he is either the sole adult awake in the home with the child, or the only adult upstairs in Jane H.'s bedroom area.

Additionally, Amy B. and Edith H. have each admitted that on at least one occasion they have experienced the children involved in some questionable behavior for ten or fifteen minutes without their knowledge.

Therefore the Court does find that Jim P. had sufficient opportunity to commit these acts of abuse as described by the child.

Secondly, the Court finds Dr. Silecchia to have been a credible and knowledgeable witness. She lacked motivation to be anything but truthful. Dr. Silecchia testified clearly that she examined the child, Jane H. on May 1, 2007. She indicated that "the injury to the child's hymen was consistent with digital penetration with an adult size finger or fingers and also penile penetration, probably partial."

Thirdly, while Jane H. was described as a child with behavioral issues, it was clear from the testimony of Veronica Schauder, the school social worker, that Jane H.'s negative behaviors did not continue once she made the disclosure of sex abuse. The Court accepts this as further corroboration of the child's out-of-court statement.

The Court finds that Jane H.'s statement was credible. The child's description of the sexual acts, which she was subjected to, was far beyond that which a child of six years would know, even considering, if true, that she had watched pornography. She gave great detail to specific sex acts as previously set forth in this decision.

The respondent, Jim P., presented two witnesses, Amy B. and Edith H..

The Court does not credit the testimony of Amy B. or Edith H. regarding their view of the statement by Jane H.

In viewing their demeanor and assessing their credibility, the Court finds that they were both motivated not by the truth but by their desire to help Jim P. The Court finds that their testimony was designed to exaggerate whatever behavioral problems Jane H. may have had for the sole purpose of defending Edith H.'s paramour, the respondent.

While, Amy B. claimed that this happened only because Linda H. was going through a psychotic episode, the Court finds Linda H.'s version of events leading up to the disclosure to be credible. She described her daughter, Jane H., as acting oddly and therefore had a talk with her. That the mother "lost it" upon learning of the sex abuse to her child, is credible.

Additionally, the position of respondent's witnesses is not supported by the medical testimony and medical records that were admitted into evidence.

Jim P. did not testify at this fact-finding hearing. As a result, the Court will draw a negative inference. "It is settled that where a respondent fails to testify at the fact-finding hearing, the Court is permitted to draw the strongest possible negative inference against him." Noce v. Kaufman, 2 NY2d 347 (1957); Matter of Jasmine A. 18 AD3d 546 (2d Dep't, 2005).

Family Court Act § 1046(b)(i) states that "in a fact-finding hearing any determination that the child is an abused or neglected child must be based on a preponderance of the evidence." Matter of Tammie Z., 66 NY2d; 494 NYS2d 686 .

Family Court Act § 1046(a)(i) states 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 child of, or the legal responsibility of, the respondent."

Based on all the evidence presented the Court does find that the Presentment Agency has proven by a preponderance of the evidence that Jane H. was sexually abused pursuant to Family Court Act § 1012(e)(ii) in violation of Penal Law § 130.65, § 130.50 and § 130.67.

Additionally, the Court finds that the respondent's sexual abuse against Jane H. establishes a flawed understanding of a parent's duties and impaired parental judgment sufficient to support findings of derivative neglect of John H., Michael S. and Mary S. Matter of Abigail S. 21 AD3d 380 (2nd Dep't, 2007) and therefore makes a finding of derivative neglect regarding the remaining three children.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.


Summaries of

In Matter of Department of Social Servs.

Family Court, Nassau County
Jul 2, 2008
2008 N.Y. Slip Op. 51604 (N.Y. Fam. Ct. 2008)
Case details for

In Matter of Department of Social Servs.

Case Details

Full title:IN THE MATTER OF THE DEPARTMENT OF SOCIAL SERVICES o/b/o JANE H. JOHN H…

Court:Family Court, Nassau County

Date published: Jul 2, 2008

Citations

2008 N.Y. Slip Op. 51604 (N.Y. Fam. Ct. 2008)