| Matter of Telsa Z. (Rickey Z.\MDenise Z.) |
| 2010 NY Slip Op 01859 [71 AD3d 1246] |
| March 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of Telsa Z., and Another, Children Alleged to beAbused and Neglected. Clinton County Department of Social Services, Respondent; Rickey Z.,Appellant. Denise Z., Appellant. |
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Spain, J. Appeals (1) from two orders of the Family Court of Clinton County (Lawliss, J.),entered February 11, 2009 and March 17, 2009, which granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to be abusedand neglected, and (2) from an order of said court, entered March 17, 2009, which issued anorder of protection against respondent.
Respondent and Denise Z. (hereinafter the mother) are the parents of two daughters, Telsa Z.(born in 2000) and Destiney Z. (born in 2001). The mother also has three older [*2]daughters from previous relationships (born between 1989 and1995). In October 2008, petitioner filed an abuse and neglect petition solely against respondent,alleging that he had repeatedly sexually abused Telsa (hereinafter the child), then eight years old,and that he had derivatively abused and neglected her younger sister. A temporary order ofprotection was issued against respondent directing him to stay away from the children, whoremained at home with the mother. The mother was apparently notified of the proceedingpursuant to Family Ct Act § 1035 (c) and (d). In the petition and throughout the record, themother is referred to and treated as a "non-respondent parent" (see Family Ct Act§ 1035 [d]).
The sexual abuse allegations against respondent were based primarily on the child'sout-of-court statements to four adults: a teacher, a teacher's aide and a school psychologist at thechild's special education program, and a Child Protective Services caseworker. Their testimonyat the fact-finding hearing recounted the child reporting that respondent had repeatedly sexuallyabused her and their observations that, during the relevant period of time, she had difficulty withsocial interaction, appeared to be depressed, isolated and withdrawn, and often complained thather legs, thighs and "private parts" hurt; the child also reported that the mother had "peeked" intorespondent's bedroom, saw what he was doing to the child and then left and pretended that it didnot happen. The child's teacher testified that the child had written a note on a page in hernotebook—on which she had also drawn a picture—describing respondent's abuse,and a copy of that page was received in evidence. The child also reported that the mother toldher that, because of what had happened, she was bad and that both parents told her that shewould go to jail if she said anything about the abuse.
Petitioner also called the child as a witness. After questioning the child, Family Court ruledthat she was incapable of taking an oath but permitted her to give unsworn testimony incamera.[FN1]While respondent offered no evidence, the Law Guardian called him as a witness and he deniedeach of the allegations of sexual abuse, claiming that the child's reports of sexual abuse weremotivated by anger at his refusal to get her a horse. Significantly, the record is clear that themother and her attorney were present, but sat passively through the entire fact-finding hearing;the mother did not testify and her attorney presented no witnesses, conducted nocross-examination, made no motions or objections and gave no closing argument. In the closingarguments, respondent's attorney questioned why respondent was the only parent charged.
In its fact-finding order entered February 11, 2009, Family Court found that the child'sunsworn testimony was reliable and sufficiently corroborated her out-of-court statements, notingthat, while there were some inconsistencies in her testimony, she remained consistent regardingher allegations against respondent. The court concluded that respondent had sexually abused andneglected the child and had derivatively abused and neglected the younger sister. No findingswere made with respect to the mother.
At the dispositional hearing, Family Court, on its own initiative and without objection, sworethe mother in as a witness and questioned her in detail about her history, including the neglectand loss of custody of her three older children, an issue first raised at fact-finding; the [*3]mother's past behavior then became the main focus at thehearing.[FN2]The Law Guardian elicited testimony, on cross-examination of the caseworker, regarding thechild's reports that the mother looked in during respondent's abuse, ignored it, and blamed thechild. In addition, the caseworker testified from her case notes that the mother admitted that shesometimes observed the child going into respondent's bedroom and that the mother believed thechild's allegations against respondent.
The mother testified and denied any knowledge of respondent's abuse of the child. In theend, the Law Guardian advocated that the children should be removed from the mother's homeand have only supervised visits with her. Respondent argued that the children should remainwith the mother and that he be permitted limited visitation. Petitioner took the position that thechildren were bonded to the mother and should remain at home with her and that the temporaryorders of protection against respondent be made permanent.
In its dispositional order entered March 17, 2009, Family Court first concluded thatrespondent abused and neglected the children. It then found that the mother failed to protectthem and held—based upon the proof at the dispositional hearing—that their bestinterests required that they be removed from the home of their mother and placed with petitioner;all visitation with the mother was precluded for three months and then supervised visitation withthe mother would be allowed, initially biweekly; respondent was denied all visitation. Finalorders of protection were entered the same day against respondent and the mother. On appeal,respondent challenges the findings of abuse and neglect against him, and both parents challengethe order of disposition.[FN3]
In a Family Ct Act article 10 proceeding, petitioner bears the burden of proving abuse and/orneglect by a preponderance of the evidence (see Family Ct Act § 1046 [b]; Matter of Richard SS., 29 AD3d1118, 1121 [2006]). A child's previous out-of-court allegations of abuse or neglect areadmissible but, to support a finding of abuse or neglect, "must be corroborated by other evidenceintroduced during the proceeding that tends to establish their reliability" (Matter of Kole HH., 61 AD3d1049, 1051 [2009], lv dismissed 12 NY3d 898 [2009]; see Family Ct Act§ 1046 [a] [vi]; Matter of IanH., 42 AD3d 701, 702 [2007], lv denied 9 NY3d 814 [2007]). "[A] [*4]relatively low degree of corroborative evidence is sufficient inabuse proceedings" (Matter of Joshua QQ., 290 AD2d 842, 843 [2002]; see Matter of Kayla N., 41 AD3d920, 922 [2007]) and, while mere repetition is not sufficient, "some corroboration can beprovided through the consistency of a child's statements" (Matter of Richard SS., 29AD3d at 1121; see Matter of Kole HH., 61 AD3d at 1052; Matter of Kayla F., 39 AD3d 983,984 [2007]). A child's unsworn testimony may provide such corroboration (see Matter ofChristina F., 74 NY2d 532, 536-537 [1989]).
Family Court is accorded " 'considerable discretion to decide whether the child's out-of-courtstatements describing incidents of abuse or neglect have, in fact, been reliably corroborated andwhether the record as a whole supports a finding of abuse' " (Matter of Caitlyn U., 46 AD3d 1144, 1145-1146 [2007], quotingMatter of Christina F., 74 NY2d at 536; see Matter of Felicia N., 44 AD3d 1188, 1188 [2007]). Moreover,Family Court's credibility determinations are accorded deference (see Matter of Chaquill R., 55 AD3d975, 977 [2008], lv denied 11 NY3d 715 [2009]; Matter of Randy V., 13 AD3d 920, 921 [2004]).
Here, Family Court rightly determined that the child's allegations against respondent weresufficiently corroborated and the record supports the findings of abuse and neglect against him(see Matter of Caitlyn U., 46 AD3d at 1145-1146). The child's statements to the adultswere essentially consistent and were corroborated by testimony that, in the period before herdisclosure, she began exhibiting withdrawn, distressed behavior and was complaining of pain onher legs and thighs, as well as by the drawing and remarks in her notebook. Her allegations werealso corroborated by her unsworn testimony (see Matter of Kole HH., 61 AD3d at 1052;Matter of Brandi U., 47 AD3d1103, 1104 [2008]). Thus, we find that there was sufficient evidence to support thedetermination that respondent neglected and abused the child. Further, a finding of derivativeneglect was warranted as to the younger sister where, as here, "the evidence as to the child foundto be neglected demonstrates such an impaired level of parental judgment as to create asubstantial risk of harm for any child in respondent's care" (Matter of Daniella HH., 236AD2d 715, 716 [1997]; see Matter ofMaddesyn K., 63 AD3d 1199, 1202 [2009]; Matter of Ian H., 42 AD3d at 704).As to the court's dispositional order, there is abundant evidence in the record to support thecourt's decision to preclude respondent from any visitation with the children.
With regard to the mother, however, we conclude that Family Court misused the noticeprovisions of Family Ct Act § 1035 (d) by making factual findings of culpability againsther and removing the children from their home with her despite the lack of a petition against her.Thus, we reverse the dispositional order as it relates to her. Clearly, a non-respondent parentsuch as the mother herein, who is not a named respondent in the petition, has a limited statutoryrole and narrow rights under Family Ct Act § 1035 (d) to: (1) pursue temporary custody ofhis or her child/children during fact-finding, and (2) seek permanent custody during thedispositional phase (see Matter of Holmes, 134 Misc 2d 278, 279-280 [1986]). Thesenotice requirements are designed to ensure that the non-respondent parent, often the noncustodialparent, is notified of the proceedings and allowed to intervene and be heard on temporary orpermanent custody. They also serve to advise the non-respondent parent of the consequences ofprolonged foster care (see Family Ct Act § 1035 [d] [ii], [iii]). These provisions donot contemplate the pursuit and presentation of evidence of, and fact-finding regarding, abuse orneglect of the subject child/children by the non-respondent parent who has not been charged.That is, these notice provisions do not provide a back-door vehicle to dispense with formallycharging a non-respondent parent, to make findings of abuse/neglect against that parent, and tothen order the [*5]removal of the children from that parent. Sucha procedure violates the non-respondent parent's basic right to due process.
Here, midway through the fact-finding hearing, Family Court had "good cause" to order aFamily Ct Act § 1034 investigation to determine whether a petition should also be filedagainst the non-respondent mother (Family Ct Act § 1035 [d] [i]; see Family CtAct § 1034); in view of the court's dispositional abuse/neglect findings against her forcomplicity, the court's failure to so charge the mother deprived her of a fact-finding hearing. Shewas never formally charged, but was—essentially—determined to be guilty ofabuse or neglect of the child in question and to have derivatively abused or neglected theyounger sister. As a consequence, she suffered the greatest deprivation, the total loss of custodyand the temporary loss of visitation with both children. This was a determination that shouldonly have been made after a Family Ct Act article 10 petition was filed naming her as arespondent (see Family Ct Act § 1035 [d] [i]). Under the proper procedurecontemplated by article 10, naming her as a respondent in a petition entitles her to the fullpanoply of rights accorded to such respondent parents including, but not limited to, a detaileddescription of the charges against her, full, active participation with counsel in the fact-findinghearing, including rules of evidence that are more stringent than those followed at a dispositionalhearing (see Family Ct Act § 1046 [b] [iii]; [c]), submission of evidence, callingand cross-examining witnesses, challenging petitioner's proof, testifying, and making objectionsand closing remarks.
Accordingly, we will direct that all proceedings relating to the mother be remitted to FamilyCourt before a different judge and that an investigation pursuant to Family Ct Act § 1034be made and forwarded to Family Court, forthwith, and, if warranted, a Family Ct Act article 10petition filed against the mother. In the interim, the court shall craft an appropriate temporaryorder providing protection for the children until the final resolution of proceedings against themother, if any.
Mercure, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order enteredFebruary 11, 2009 and the order of protection entered March 17, 2009 against respondent areaffirmed, without costs. Ordered that the dispositional order entered March 17, 2009 is modified,on the law, without costs, by reversing so much thereof as removed the children from the homeof Denise Z. and temporarily precluded all visitation with her; all proceedings with respect toDenise Z. are remitted to the Family Court of Clinton County before a different judge, petitioneris directed to forthwith conduct an investigation pursuant to Family Ct Act § 1034 to beforwarded to said court, any change in the custody of the children from their current placementwith petitioner is hereby stayed until further order of Family Court regarding temporary custodyand visitation pending a final determination of any proceedings which follow, and any orderssuperceding the dispositional order with respect to Denise Z. are reversed; and, as so modified,affirmed.
Footnote 1: Upon consent, Family Court,the Law Guardian and the attorneys for the parents were the only people in the courtroom duringthe child's testimony.
Footnote 2: That history included courtdocuments reflecting indicated reports against the mother between 1993 and 1997, whichconcluded that her two eldest daughters were sexually abused by several of her boyfriends andthat the mother sexually abused the eldest daughter (which the mother had denied). Both elderdaughters were removed from the mother's care and adjudicated to be neglected by the mother,and the mother later surrendered her parental rights as to both. Additionally, in 1998, theremaining older daughter, then four years old, was adjudicated to be neglected; the mother laterconsented to her custody with foster parents.
Footnote 3: Although respondent alsoappealed from the order of protection issued against him, he does not challenge that order in hisbrief. As such, the appeal is deemed abandoned (see Matter of Schermerhorn v Breen, 8 AD3d 709, 710 n [2004]).