| Matter of Karen Patricia G. |
| 2007 NY Slip Op 07433 [44 AD3d 658] |
| October 2, 2007 |
| Appellate Division, Second Department |
| In the Matter of Karen Patricia G., a Child Alleged to be Abusedand Neglected. Suffolk County Department of Social Services, Appellant; Carlos G.,Respondent. (Proceeding No. 1.) In the Matter of Kevin M., a Child Alleged to be Abused andNeglected. Suffolk County Department of Social Services, Appellant; Carlos G., Respondent.(Proceeding No. 2.) In the Matter of Carlos Javier G., a Child Alleged to be Abused andNeglected. Suffolk County Department of Social Services, Appellant; Carlos G., Respondent.(Proceeding No. 3.) |
—[*1] Robert C. Mitchell, Central Islip, N.Y. (Diane M. Somberg and Howard Gardos of counsel),Law Guardian.
In related child protective proceedings pursuant to Family Court Act article 10, the petitionerappeals from three orders of the Family Court, Suffolk County (Freundlich, J.), all enteredNovember 2, 2006 (one as to each child), which, after a hearing, dismissed the petitions allegingthat the respondent father, Carlos G., severely abused and neglected the child Karen Patricia G.,and derivatively abused and neglected her brother Kevin M., and her stepbrother Carlos Javier G.
Ordered that the order dismissing the petition relating to Karen Patricia G. is reversed, on thelaw and the facts, without costs or disbursements, the petition is reinstated, Karen Patricia G. isfound to be abused and neglected by the respondent father, and the matter is remitted to theFamily Court, Suffolk County, for a dispositional hearing; and it is further,
Ordered that the order dismissing the petition relating to Carlos Javier G. is reversed, on thelaw and the facts, without costs or disbursements, the petition is reinstated, and the matter isremitted to the Family Court, Suffolk County, for a further fact-finding hearing in accordanceherewith; and it is further,
Ordered that the order dismissing the petition relating to Kevin M. is affirmed, without costsor disbursements.
A petition was filed relating to Karen Patricia G., who was then eight years old, based on herstatement that she had been subjected to sexual contact by the respondent. Karen did not testify atthe fact-finding hearing, but her previous statement containing the allegations of sexual contactwas introduced through the Special Victims Unit detective who took her statement. Testimony asto the circumstances of the making of the statement was also provided by an investigator withChild Protective Services. The child's statement alleged that the respondent subjected her tointimate sexual contact on August 7, 2006, including removing her underpants and placing histongue in contact with her vagina. The statement alleged similar and additional contact hadoccurred on a number of occasions over the course of the preceding three years.
The petitioner presented the testimony of an expert witness, qualified as an expert in the fieldof child sexual abuse, who had examined Karen on or about August 24, 2006. In addition toexamining the child, the expert reviewed the report of a physical examination of Karen by asexual abuse nurse examiner (hereinafter SANE) that had been conducted on August 8, 2006.The SANE examination had noted the presence of redness on an interior portion of the child'svagina. The child sexual abuse expert testified the redness was evidence of trauma to the tissues,that it was the result of something rubbing against or touching the tissue with some force, andthat the trauma was consistent with the allegations made by the child.
The respondent did not testify at the hearing. Testimony as to the contentious nature of therespondent's relationship with Karen's mother, including her asserted noncompliance with all theprovisions of a visitation order, was adduced through the testimony of the respondent's wife. Theparties acknowledged that a forensic examination of the child's underpants did not disclose anyevidence.[*2]
The Family Court dismissed the petitions notwithstandingthe allegations in Karen's statement, the medical evidence, and the negative inference that couldbe drawn from the respondent not testifying. The Family Court indicated that, under thecircumstances of this case, a determination of the credibility of the child's allegations, sufficientto prove abuse by a preponderance of the evidence, could not be made without at least an incamera interview of Karen by the court.
We disagree. Contrary to the determination of the Family Court, a determination can be madefrom the hearing record as to the credibility of the assertion of abuse, notwithstanding thecontentious relationship between the child's mother and father.
The Legislature has specifically provided that the testimony of a child at the hearing shall notbe necessary to make a fact finding of abuse or neglect (see Family Ct Act § 1046[a] [vi]). Karen's previous statement about the abuse was corroborated by the results of the SANEexamination and the testimony of the expert in the field of child sexual abuse. The allegations inKaren's statement, the medical evidence and expert testimony, together with a negative inferencedrawn from the respondent's failure to testify (see Matter of Christopher L., 19 AD3d 597 [2005]; Matter ofJoseph C., 297 AD2d 673 [2002]), were sufficient to establish, by a preponderance of theevidence, the respondent's abuse and neglect of Karen. That evidence demonstrated that therespondent abused and neglected Karen by subjecting her to contact between his mouth andher vagina (see Family Ct Act § 1012 [e] [iii]; Penal Law § 130.00 [2] [a];§ 130.45).
As the Family Court did not make a finding of abuse with regard to Karen, no substantiveconsideration was given to whether the respondent abused or neglected Carlos Javier G. CarlosJavier is the respondent's two-year-old son who resides with the respondent and his wife, CarlosJavier's mother. Accordingly, the petition alleging the abuse and neglect of Carlos Javier isreinstated and the matter is remitted to the Family Court, Suffolk County, for a furtherfact-finding hearing to consider the derivative evidence provided by the finding of abuse andneglect of Karen (see Family Ct Act § 1046 [a] [i]).
The hearing testimony established that, contrary to the assertion in the petition, therespondent is not and never was the stepfather of Kevin M., who was 17 years old at the time ofthe hearing. The respondent has no contact with Kevin and is not in any way legally responsiblefor him. The dismissal of the abuse and neglect petition relating to Kevin was appropriate.Mastro, J.P., Covello, Angiolillo and Dickerson, JJ., concur.