Matter of Abraham P.

[*1] Matter of Abraham P. 2008 NY Slip Op 52498(U) [21 Misc 3d 1144(A)] Decided on December 12, 2008 Family Court, Kings County Hamill, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 12, 2008
Family Court, Kings County

In the Matter of Abraham P. A Child under Eighteen Years of Age Alleged to be Abused by Juan. R., Respondent.



NA 17611/08



Appearances:

William Henig, Esq., for petitioner

Division of Legal Services,

Administration for Children's Services

330 Jay Street

Brooklyn, New York 11201

Diana Price, Esq., attorney for the child

Children's Law Center

44 Court Street, 11th Floor

Brooklyn, NY 11201

Deana Balahtsis, Esq., for respondent father

111 John Street, Suite 1509

New York, NY 10038

Bryanne A. Hamill, J.

Background [*2]

On July 7, 2008, the Administration for Children's Services ("ACS") filed this petition [FN1] against Juan R., the respondent father, pursuant to Article 10 of the Family Court Act ("FCA"). The petition alleges that the subject child, Abraham P., (hereinafter "subject child" or "Abraham"), born on April 18, 2002, is an abused child as defined by FCA 1012(e) (iii). The relevant portion of the statute defines an abused child as a "child less than eighteen years of age whose parent or other person legally responsible for his care commits, or allows to be committed an offense against the child defined in article one hundred thirty of the penal law." NY Fam. Ct. Act §1012(e) (iii) (McKinney 2008). The petition alleges that the respondent violated §130.50 of the Penal Law, among lesser offenses, which is "engaging in oral sexual conduct or anal sexual conduct with another person who is less than eleven years old." NY Penal Law §130.50 (McKinney 2008). Specifically, the petition alleges that the respondent "sexually abused the subject child, causing the child to sustain two tears to his anus at 1:00 and 5:00 that are consistent with rectal penetration." The petition further alleges that "[a]ccording to Dr. Brunot, Abraham told him that at approximately 6:00am on or around July 5, 2008, the respondent father woke Abraham up and penetrated Abraham's anal area, first with his finger and then with his penis." (Pet. Addendum 1, ¶2.)

On July 21, 2008 the respondent requested a hearing, pursuant to FCA §1028, for the return of Abraham to his care. FCA §1028 states that the court shall hold a hearing to determine whether the return of the child presents imminent risk to the child's life or health. NY Fam. Ct. Act §1028 (McKinney 2008). The hearing commenced on July 23, 2008 and was continued on July 28, July 29,

July 30, July 31, and August 12.[FN2] This written decision follows this Court's oral decision rendered on August 12, 2008 at the conclusion of the protracted §1028 hearing.

At the hearing, ACS called its caseworker, Nyema Brogdon [FN3]; Dr. Emmanuel Brunot, the pediatric neurologist who examined the child at the emergency room; Makeba, the mother who is a nonrespondent in this case but is a respondent in her own ACS neglect case; Meredith Fliegel, social worker at the Brooklyn Child Advocacy Center ("CAC")[FN4]; and Ms. Diacomanolis, the Director of the CAC, to testify. ACS failed to call Dr. Ajl, a pediatrician who is considered a child abuse expert at the CAC who consulted on this case, and Detective Meade, a police [*3]child abuse investigator at the CAC, who conducted the initial forensic interview with the child.

The respondent father testified, and called Ms. Daniele, a registered nurse and child abuse expert who examined the child at the CAC, and Detective Wilson of the NYPD. Notably, the attorney for the child ("AC") supported the father's §1028 application and the return of the child to the father's care.

The Court conducted an in-camera interview with Abraham on July 28, which was transcribed and made available to all parties. The following exhibits were entered into evidence:

Petitioner's #1ORT dated 7/06/08

Petitioner's #2ORT dated 7/05/08 at 7:05 P.M.

Petitioner's #3ORT dated 7/05/08 at 9:24 P.M.

Petitioner's #4Report of Suspected Child Abuse by Dr. Brunot dated 7/05/08

Petitioner's #5Pediatric Summary by Nurse Daniele of the CAC

Petitioner's #6Little Flower Medical Exam dated 7/15/08

Petitioner's #7Investigation Progress Notes

Petitioner's #8Anatomical Drawing

Petitioner's #9Caseworkers notes from Forensic interview at CAC

Petitioner's #10Curriculum Vitae of Meredith Fliegel, LMSW

Respondent's #AKings County Hospital Record for Makela 9/11/06

Respondent's #BCurriculum Vitae of Rose Mary Daniele, RN

Respondent's #CFamily Services Progress Notes

Respondent's #DDomestic Incident Report Dated 4/19/08

Respondents' #ERecords from Lutheran Family Health Center dated 7/28/08

AC #ACourt Action Summary dated 7/29/08

AC #BForensic Interview Structure from National CAC

AC #CAnatomical Drawing with Abraham's markings

The testimony revealed the following custody and visitation proceeding as well as prior neglect and removal proceedings before other judges. Abraham's mother obtained a custody order in 2006, and Abraham remained in her care until May 13, 2008. In September 2007, the respondent father filed a petition seeking visitation and since then, the court has issued several orders entitling the father to weekly visitation. The mother consistently failed to respect those orders, and the court repeatedly warned the mother that if she did not comply with the visitation order, the court would award the child's father custody. Between September 2007 and May 12, 2008, only three of the weekly court-ordered visits between Abraham and his father took place, one lasting just fifteen minutes. During the final visit, on April 19, 2008, the father filed a domestic incident report. The report, corroborated by Detective Wilson's testimony, which the Court fully credits, indicates that the child ran from the police precinct and his father, stating "my mom said my dad was the devil." (Respt.'s D.) [*4]

Abraham remained in his mother's care until May 2008, when ACS filed a neglect petition against her. According to the caseworker, Abraham's ten-year-old brother Carlos was assaulted in a park, and was found by a mail carrier who called an ambulance. When the child was ready to be discharged from the hospital, the records indicate that hospital authorities were unable to contact the mother. As a result of this incident, Abraham, Carlos, and their two-year-old sister Makela were remanded to ACS, and criminal charges were filed against the mother. One week later, on May 20, 2008, Abraham and his siblings were paroled to their respective fathers. Abraham remained with his father until July 6, 2008, when ACS removed Abraham, pursuant to Family Court Act §1024. This provision authorizes emergency removals when there is reasonable cause to believe imminent risk exists to the child's life or health if the child remains in the care and custody of the parent, and insufficient time prevents obtaining a removal order, pursuant to Family Court Act §1022. NY Fam. Ct. Act §1024 (McKinney 2008).

The testimony further revealed that the mother has a history of bringing unfounded allegations of sexual abuse against her children's fathers, beginning in 2006 when she brought her infant daughter, Makela, to the emergency room alleging that she was sexually abused by her father. According to the ACS investigation notes, the mother has also alleged that her three pregnancies resulted from rape, though she filed no criminal or civil charges against her children's fathers. Finally, on July 6, 2008, the day the ACS petition was filed against Abraham's father, the mother filed two complaints with ACS alleging that both Makela and Carlos were sexually abused by their fathers and stepfathers. (Respt.'s A.) Despite the allegations, ACS did not remove Makela and Carlos from their fathers' custody.

DISCUSSION OF TESTIMONY AND EVIDENCE

On July 5, 2008, the respondent father dropped Abraham off at 9:00 a.m. to visit his mother for the day. The mother alleges that shortly afterwards, Abraham told her that the father used his finger and penis to penetrate Abraham's rectum on repeated occasions, the most recent being that morning. (§1028 Hr'g Tr. 119, July 29, 2008.) The mother also claimed that the child told her the fathers of his two siblings, as well as his father's paramour, and the foster mother with whom he lived six weeks prior had all sexually abused Abraham and his siblings. On direct examination, the mother testified that following these disclosures, she "combed his hair and proceeded to take him directly to the hospital. We took the bus and went straight to the hospital." (Hr'g Tr. 121:25; 122:2-3.) Yet, on cross examination, she testified that she continued to braid his hair until about 1:00 p.m., and cooked and fed Abraham nuggets and macaroni and cheese, before going to the hospital at 3:00 p.m.. (Hr'g Tr. 148.) The records from the hospital, just over half a mile from the mother's home, indicate that Abraham was not seen there until 4:30 p.m., and that Dr. Brunot examined the child shortly after 5:00pm. (Petr.'s 4.) [*5]

Dr. Brunot testified that he has only completed three or four reports of sexual abuse throughout his thirty-year career as a pediatrician. (§1028 Hr'g Tr. 43, July 29, 2008.) According to ACS investigation notes and Ms. Brogdon's testimony, Dr. Brunot interviewed the child in the presence of his mother. Even the mother testified that she does not remember being separated from Abraham at any point during the hospital visit. (Hr'g Tr. 149.) However, Dr. Brunot also testified that the child first made his disclosure in a private interview, and the child repeated his assertion in the presence of his mother. It is not disputed that during the child's interview, the mother was no more than 6-10 feet away.

There are inconsistencies regarding how the child's alleged disclosures were made, but essentially, Dr. Brunot testified that he told Abraham that it was his understanding that "[Abraham's] father and the two stepfathers put their penises in his butt" and that Abraham agreed. (§1028 Hr'g Tr. 85:9-14, July 29, 2008.) Dr. Brunot admits that he did not ask the child any details such as time, place, people present, whether they were clothed, or whether his father's or his stepfathers' penises were hard during the alleged assaults. This directly contradicts the allegations of ACS's petition, specifically that "[a]ccording to Dr. Brunot, Abraham told him that at approximately 6:00 a.m. on July 5, 2008, the respondent father woke Abraham up and penetrated Abraham's anal area first with his finger and then with his penis." (Pet., Addendum 1, ¶2.) Dr. Brunot has also testified that while constipation or diarrhea could account for the lacerations he observed, he did not ask whether the child has been experiencing such problems. The Court views Dr. Brunot's testimony as lacking credibility. Aside from his lack of expertise in child or sexual abuse cases, he asked leading questions to Abraham in proximity to the mother. As well, Dr. Brunot made no effort to determine the accuracy of the mother's account or to ascertain or reconstruct the child's medical history.

Police officers and detectives arrived at the hospital at approximately 7:00 p.m. on July 5, 2008. A rape kit was completed but there was no evidence of semen. The hospital social worker placed a social hold on the child's discharge, and several hours later the child was released to ACS caseworker Dwayne John and Detective Meade of Brooklyn Child Abuse Squad. Later that night, they arrived with the child and the mother at the Brooklyn CAC. According to the investigation notes submitted into evidence by ACS, Detective Meade interviewed the mother, who repeated the allegations of sexual abuse against the respondent and the four other adults.Detective Meade also interviewed Abraham and attempted to engage him in a discussion about sexual abuse, but the child did not make any disclosures of abuse. Abraham did state that his father puts his finger near Abraham's butt and that he is rude because his father hits and smacks him. The child gave articulate, detailed accounts of recent events, but could not with any specificity speak of any event suggesting child abuse. The following day, during an interview with ACS, the respondent denied the sexual abuse allegations, and informed the caseworker that during the week prior the child reported that he was constipated, but that the condition resolved itself. [*6]

On July 9, Detective Meade and Ms. Brogdon interviewed the child again. According to the investigation notes ACS submitted into evidence, the child made no disclosures of sexual abuse, but did report that he had recently been constipated. Ms. Brogdon testified that Detective Meade determined that the child was not credible. (§1028 Hr'g Tr. 75, July 28, 2008.)

The same day, Ms. Daniele, a nurse at the CAC, examined Abraham. Her report indicates that following the exam, she concluded that the child "made no disclosure of sexual abuse and has no physical exam findings. Child also has history of constipation which could account for the lacerations seen in the Emergency Room." (Petr.'s 5.) The Court finds Ms. Daniele's testimony credible, persuasive, and unbiased.

The next day, according to investigation notes submitted by ACS, Dr. Brunot told Ms. Brogdon that there was no physical distinction between tears sustained by forced anal penetration and tears sustained by constipation, and Dr. Brunot stated that the child's statements led the doctor to diagnose sexual abuse. (Petr.'s 7 at 26.) Ms. Brogdon conferenced the case with Dr. Ajl, a child sex abuse expert at the CAC. According to her testimony, as well as the investigation notes in evidence, Dr. Ajl told Ms. Brogdon that because Dr. Brunot is not a child sex abuse expert, Dr. Ajl would not trust Dr. Brunot's findings at all. He also said that if Dr. Brunot's observations were accurately reported as tears, than there should be some evidence of those tears four days later when Ms. Daniele examined the child. (Petr.'s 7 at 27.)

The investigation notes submitted into evidence by ACS include a section identified as "Supervisor/ Managerial Review." Within this section, dated July 11, the notes recorded by ACS indicate that following Detective Meade's forensic interview of Abraham on July 9, and Ms. Daniele's examination of the child, "sex abuse was ruled out." The notes also state "case is closed as unfounded." (Petr.'s 7 at 16.) Additionally, while conferencing this case with ACS, Dr. Ajl told the caseworker that there was not enough evidence to support bringing these allegations to Court. (Petr.'s 7 at 27.)

On July 28, this Court conducted an in-camera interview with Abraham and determined that he was not swearable. When asked by the Court whether he understood what it means to tell the truth, the child responded, "[t]ruth means you tell the truth and when you tell the truth, you go back with where you live and where you started." When asked whether he thought the Judge could punish him for not telling the truth, the child responded, "You could punish me by taking me away from my mom." When asked how God might punish him for telling a lie, the child responded, "By electrocuting me."

When asked whether his father ever did anything that he did not like, the child responded that his father gives him pow pows, and which hurt him. The Court then asked the child to describe what a pow pow means and the child responded, "I don't know," but he later described that a pow pow as a closed-fist smack to his clothed backside. When asked whether the child's mother told him to say that his father gave him pow pows, the child answered, "I just don't know [*7]what my dad did." The Court then asked whether the child had ever been hurt by his father, and the child stated that his father "smacked my private," indicating his penis. Finally, when asked whether his mother told him what to say, the child responded, "[y]es. Because that's the right one to say because that's the right one to say because my mom likes it to live with Makela and Carlos and me because they counting on me." The Court places no weight on this child's various inconsistent statements, as he is highly suggestible and is under the negative influence of the mother.

Pursuant to the Court's Order, ACS Deputy Director Almarie Buddington appeared in Court on July 29 for the continuation of the §1028 hearing. In her presence, the Court ordered, "ACS shall further investigate these sexual abuse allegations, including the mother's mental health and whether she is causing the child to fabricate. ACS shall have the subject child undergo an intensive, comprehensive forensic child abuse evaluation by a qualified forensic child abuse evaluator." In addition, the Court ordered that "[a]ll such interviews be videotaped." At the conclusion of the hearing on that date, Ms. Buddington stood before the Court and stated on behalf of ACS "[i]t will be done through the CAC, we will be doing a forensic interview (§1028 Hr'g Tr. 192:24-25, July 29, 2008) which is done in a day and based on the outcome of the forensic interview we'll determine if the forensic evaluation, which is more extensive is needed . It's done by a sex abuse expert" (Hr'g Tr. 193:1-5, 15-16).

Testifying on behalf of ACS, Ms. Brogdon, the ACS caseworker, stated that at approximately 11:00am on July 30 she learned the interview would not be videotaped, and notified her CPM; Mr. Henig, the attorney for ACS; and Deputy Director Almarie Buddington, but not the Court. Following her ACS supervisors' direction, Ms. Brogdon brought the child to the CAC for a 1:00 appointment. Ms. Meredith Fliegel, the clinical forensic specialist assigned to the case, began the interview at approximately 1:30 p.m..

Ms. Diacomanolis, the Director of the Brooklyn CAC, appeared on behalf of ACS. She testified that she did not see the Court Order before arranging for Abraham's interview, and understood that the Court ordered a forensic interview, and not a forensic evaluation. In addition, she had not been informed that the Court ordered ACS to investigate the mother's mental health or whether Abraham's mother influenced him to fabricate the charges of sexual abuse. She also testified that had she been informed that this was the child's seventh interview, she would not have permitted the interview to take place at the CAC. Notably, she testified that Brooklyn CAC follows National CAC protocol, except when it conflicts with the interests of their partner agencies, including the NYPD and ACS.

Ms. Fliegel, the interviewer, testified that protocol dictates that on the occasion that multiple interviews are performed with the same child, the interviewer should engage all members of the team in a pre-meeting in order to obtain the relevant history and discuss the results of previous forensic interviews. Though she further testified that she and Ms. Brogdon had the [*8]requisite pre-meeting, she conceded that before beginning the interview, she did not speak with Dr. Ajl, who consulted on the case; Ms. Daniele, who examined the child at the CAC; or Detective Meade, who conducted Abraham's first forensic interview at the CAC. (§1028 Hr'g Tr. 204, July 31, 2008.) As a result, she failed to ascertain a complete background of the case, and proceeded to conduct the child's seventh interview, in violation of National and Brooklyn CAC protocol.

The National CAC interview protocol submitted into evidence by the attorney for Abraham, as well as the Court's Order, required that forensic interviews be conducted by qualified forensic interviewers. In contrast, Ms. Fliegel has been a social worker for just two years, has received limited forensic interview training, and in fact stopped the interview to ask the caseworker what else she should be asking, and continued the interview, notwithstanding Abraham running around the room. Ms. Diacomanolis testified that Ms. Fliegel did not receive any supervision throughout the course of the interview. Ms. Fliegel's testimony (§1028 Hr'g Tr. 240, July 31, 2008) demonstrated that she was unable to reconcile that finding fact requires, rather than excludes, objectivity.

According to CAC's national interview structure, protocol dictates that forensic interviews be "accurately and thoroughly documented" and "written documentation should be as close to verbatim as possible." (AC's B at 2, ¶3.) Ms. Fliegel conceded that Ms. Brogdon's notes were an incomplete record of the interview, and was unable to confirm their accuracy. (§1028 Hr'g Tr. 228-231, July 31, 2008.) Additionally, Ms. Fliegel had almost no independent recollection of the interview given just one day prior, relying on Ms. Brogdon's notes throughout her testimony

The National CAC interview structure in evidence also dictates the type of questioning to be used and establishes guidelines for using anatomical drawings and performing touch inquiries. The guidelines state "[a]natomical drawings may also be incorporated into a touch inquiry to focus a young or reluctant child. Such identification by the use of drawing should be followed by a request for a narrative or additional questions." (AC's B at 6, ¶5.) The National CAC model also dictates that when touch surveys are used, "[e]very attempt should be made to identify and use the child's language in this conversation, as well as to question the child about a variety of touches. Any work products should be properly labeled and retained as evidence." (AC's B at 7, ¶2.) Ms. Fliegel testified that after the child used the terms wee-wee and butt, she never inquired into whether wee-wee was meant to refer to this child's entire groin area, his penis or his testes, or whether butt referred to his buttocks or anus. Additionally, Ms. Fliegel testified that after she used the child's terms to label the diagram, which she incorrectly called an anatomical drawing, she introduced the term "private parts," which the child then adopted. (§1028 Hr'g Tr. 218, July 31, 2008.) She conceded that she never sought to ascertain precisely what body [*9]parts the child included in that phrase, nor did she properly label the diagram to indicate the child's use of the phrase. (Hr'g Tr. 218.)

Finally, a forensic interview of a six- year-old child normally lasts about 35-45 minutes, as Ms. Diacomanolis testified, corresponding to the attention span of a typical six-year-old. (Hr'g Tr. 62.) Here, the child was interviewed for almost one and three-quarter hours.(Hr'g Tr. 196.) Additionally, while Ms. Fliegel testified that the child's ability to remain attentive dictates termination of the interview (Hr'g Tr. 196), she conceded that Abraham was unresponsive to questions and failed to make eye contact after about one hour. (Hr'g Tr. 220.) Regarding the testimony of Ms. Diacomanolis, the director of the Brooklyn CAC, and Ms. Fliegel, the clinical forensic specialist who conducted the second CAC interview with Abraham, the Court does not find their testimonies dishonest or evasive, but it places no weight on any statements made during the child's second CAC interview. Ms. Fliegel utilized a protocol that was not appropriate for the facts and circumstances of this case, failed to follow CAC's own protocol, and was generally unqualified to conduct the interview.

On direct examination, the mother gave testimony that Abraham "said that the hole is hurting because he kept trying to go to the bathroom, but he couldn't go." (Hr'g Tr. 122:12-13.) She testified Dr. Brunot said that Abraham could not be constipated. (Hr'g Tr. 122:18) On cross-examination, the mother testified that Dr. Brunot asked her if Abraham was constipated, but she reported that the child was not constipated that day. (Hr'g Tr. 149.)

The mother's testimony on behalf of ACS is generally uncorroborated. She repeatedly testified that Abraham used the terms wiener and hole when disclosing to her that he was sexually abused, and that Abraham used the same terms to describe the abuse to Dr. Brunot. (§1028 Hr'g Tr. 127, July 29, 2008.) In contrast, Dr. Brunot testified that Abraham used the terms penis and butt to describe the alleged sexual abuse. (Hr'g Tr. 82.) The mother's testimony was evasive at times. She denied remembering numerous dates of her court appearances over the past year, as well as numerous occasions when she failed to bring Abraham to visit with his father, pursuant to a court order. (Hr'g Tr. 163-172)

The Court finds the mother's testimony unreliable. She manifests a vested interest in the outcome of the hearing, may attempt to curry favor with ACS regarding her own neglect case, demonstrates extreme bias against the respondent as well as all of the fathers of her children and exhibits a pattern of unfounded sexual abuse allegations against them. Her testimony, inconsistent with most of the other evidence, was tailored and contrived.

Appearing on behalf of ACS, Ms. Brogdon, Abraham's caseworker, testified that she was concerned Abraham's mother might try to harm the children and attribute it to the fathers (§1028 Hr'g Tr. 56, July 23, 2008) and that the mother's statements to ACS did not always add up (§1028 Hr'g Tr. 37, July 28, 2008). She further testified that possibly the mother's animosity for the respondent may have motivated her to fabricate the charges, and Ms. Bogdon believed it was [*10]appropriate to investigate that possibility (§1028 Hr'g Tr. 72, July 28, 2008) but ACS failed to make any efforts to do so. (Hr'g Tr. 71.) Ms. Brogdon opined that her ACS supervisors pursued the case because of the possibility the child was recanting a truthful allegation. (Hr'g Tr. 83.) Ms. Brogdon's testimony is fully credited by the Court.

The respondent father denied sexually assaulting Abraham, and testified that Abraham was constipated the week before the alleged incident. Part of the mother's testimony and the ACS investigation notes corroborate this. The Court fully credits the respondent's testimony. He was emotional throughout the proceedings, adamant in his denial of the allegations, candid and forthright, and his testimony was corroborated in large part by other evidence.

ANALYSIS

Pursuant to Family Court Act §1028, the Court shall grant the respondent's application, unless it finds that the return of the child presents an imminent risk to his child's life or health. NY Fam. Ct. Act §1028 (McKinney 2008) At the conclusion of this heavily contested hearing, the Court concludes that ACS has failed to meet its burden of showing a substantial probability Abraham would be at imminent risk, including of sexual abuse, if returned to the care of his father, inasmuch as this Court does not find that the father ever sexually assaulted him. See, In re Jeremiah L., 45 AD3d 771 (2d Dep't. 2007); Matter of Shevonne C., 292 AD2d 452 (2d Dep't. 2002); Matter of Marquel, 269 AD2d 396 (2d Dep't. 2000).

The petitioner's allegations rely largely on Dr. Brunot's findings. The expert medical testimony of Ms. Daniele strongly supports the reasonable explanation of Abraham's well-evidenced history of constipation, and even Dr. Brunot conceded that Abraham's anal lacerations, tears or fissures were consistent with constipation. The Court finds no convincing or credible evidence otherwise.

ACS's petition also relies heavily on allegations that Abraham made disclosures of sexual abuse. In support of these allegations, ACS has presented the testimony of Dr. Brunot, Abraham's mother, and Ms. Fliegel from the CAC.

The Court places no weight on any statements made to Dr. Brunot at the emergency room, as his interview technique was wholly improper for the facts and circumstances of this case, and additionally, his testimony presents substantial inconsistencies.

The Court has found the mother's testimony to be incredulous, and places no weight on it. The Court further finds that the mother fabricated the allegations against the respondent, as well as the four other adults, in an effort to regain custody of Abraham and her other two children.

Finally, the Court does not credit any testimony from Ms. Fliegel regarding her CAC interview with Abraham. She consistently failed to follow forensic interviewing protocol, and in addition, ACS failed to comply with this Court's order directing that the child undergo a videotaped intensive forensic child abuse evaluation by a qualified child sex abuse evaluator. [*11]

The Court draws the strongest adverse inference against ACS for failing to call Dr. Ajl from the CAC, with whom ACS consulted on this case, and Detective Meade, who conducted a forensic interview of the child the day the alleged disclosures were made and has stated to other witnesses that she does not believe the child was sexually assaulted.

The Court of Appeals in Nicholson v. Scopetta, 3 NY3d 357, 383 (2004), has held that "determining whether a child is in imminent danger' is necessarily a fact-intensive determination." [FN5] The Court of Appeals further stated that in making the determination that imminent risk exists, it is "sufficient if the officials have persuasive evidence of serious ongoing abuse and, based upon the best investigation reasonably possible under the circumstances, have reason to fear imminent recurrence. Since this evidence is the basis for removal of a child, it should be as reliable and thoroughly examined as possible to avoid unnecessary harm to the family unit." Id. (internal cites omitted). In violating the Court Order to conduct a comprehensive forensic evaluation, the petitioner has failed to afford the father and child the best investigation possible. Additionally, ACS's failure to comply with the Order that all interviews be videotaped has denied the Court and the parties the opportunity to thoroughly examine the evidence. Lastly, ACS's failure to retain a qualified expert to conduct the evaluation makes that evidence unreliable.

The Second Department In re Jeremiah L., 45 AD3d 771 (2d Dep't. 2007) held that evidence adduced at the FCA §1028 hearing did not establish an imminent risk to the life or health of the subject children. "The petitioner's caseworker testified at the hearing that the children were not in imminent danger and that there was no need for their removal." Id at 771. Similarly in the case at bar, none of the witnesses to testify on behalf of the petitioner presented reliable evidence that the respondent sexually abused the child. Ms. Brogdon's testimony highlighted the inadequacies of ACS's investigation and emphasizes evidence such as statements made by Dr. Ajl and Detective Meade, which conflict with the petition.

In considering an application, pursuant to Family Court Act §1028, "[t]he court must do more than identify the existence of a risk of serious harm . [I]t must balance that risk against the harm continued removal might bring, and it must determine factually, which course is in the child's best interests." Nicholson at 378.

Despite the well-articulated balancing test for making a determination of imminent risk, Mr.

Henig, attorney for ACS, has asked the Court to "err on the side of caution" and to "realize that putting Abraham back into the care of his father could potentially put him at further risk if this allegation did indeed happen." (§1028 Hr'g Tr. 140:16-19, Aug. 12, 2008.) The "safer course" doctrine was rejected by the Court of Appeals in Nicholson and the Second Department in In re David Edward D. 35 AD3d 856 (2d Dep't. 2006) and it is rejected here. In Nicholson, the Court held that imminent danger must be "near or impending, not merely possible" and that "the term safer course' should [*12]not be used to mask a dearth of evidence or as a watered-down, impermissible presumption." 3 NY3d at 369, 380.

Appearing on behalf of ACS, Ms. Brogdon repeatedly testified that she recognized the mother's animosity toward the father in the petitioner's case, but the policy of her ACS supervisors dictated that the allegations be pursued in case the child was recanting truthful allegations. (§1028 Hr'g Tr. 67; 83, July 28, 2008.) Specifically, she reported, "I have to answer to my supervisors and they said that children recant their story and if this is what the child stated then we have to go with that." (Hr'g Tr. 83:8-12.) Furthermore, the attorney for ACS conceded to the Court that some of the evidence presented against the respondent, including the interview with Ms. Fliegel, was "watered down" from the original allegations. (§1028 Hr'g Tr.69:17, August 12, 2008.) The testimony describing ACS's policy of pursuing cases without regard to conflicting, possibly exculpatory evidence; the concession that some of the evidence was minimized; and ACS's failure to identify any way in which the respondent may have sufficiently rebutted the child's initial accusations, seems evident of an ACS policy adopting the "safer course" doctrine. Ms. Price, the attorney for Abraham, has stated that " [A]CS feels compelled to pursue the matter based on the small chance that those allegations are true. [i]t's taking the safer course doctrine to an extreme." Applying that doctrine here would depart from the holding of Nicholson; "mask[ing] a dearth of evidence" and creating the "impermissible presumption" that the Court of Appeals has warned against.

CONCLUSION

The Court finds that in light of the lack of credible evidence; the conflicting opinions of ACS's own witnesses; and the credible defense provided by the respondent; the petitioner has failed to meet its burden of showing that there is a substantial probability Abraham would be at imminent risk if returned to the care of his father. This Court does not find that the father ever sexually assaulted Abraham. Further, the risk of emotional harm to the child clearly outweighs any risk in returning Abraham to his father's care. In considering the mother's pending ACS and criminal case and her questionable mental health, the respondent father is certainly the best custodial option for Abraham. As a result, it is clearly in Abraham's best interest to be returned to his father's care.

Accordingly, the respondent's application for the return of his son, pursuant to FCA §1028, is hereby granted.

The foregoing constitutes the Decision and Order of this Court.

Dated: Brooklyn, New York

December 12, 2008

E N T E R:

HON. BRYANNE A. HAMILL, JFC Footnotes

Footnote 1: The petition against the respondent was withdrawn on Oct.10, 2008.

Footnote 2: The Part was closed for bereavement leave the week of Aug. 4, 2008.

Footnote 3: Ms. Brogdon is not a child abuse caseworker at the CAC. She testified that while normally a CAC caseworker, who is considered an expert in child abuse would have been assigned, she was assigned because no sexual abuse was disclosed to ACS. (§1028 Hr'g Tr. 70, July 28, 2008.)

Footnote 4: The Child Advocacy Center provides "prevention, intervention, emotional support and treatment services to physically and sexually abused children and their families" and "convene medical, legal, and social resources for abused children in a permanent, child-friendly location." Specifically, the CAC is partnered with ACS, the NYPD and the District Attorney's Office, as well as medical providers. (Safe Horizon's Child Advocacy Centers, http://www.safehorizon.org/page.php?nav=rl_cac & page=cac_about (last visited Nov. 8, 2008)).

Footnote 5: The Court articulated this in reference to removals under Family Court Act §1024, pursuant to which Abraham was removed from the respondent father, but the Court finds it be applicable in §1028 determinations where the standard is the same.