Matter of L. H. v R. R.

[*1] Matter of L. H. v R. R. 2009 NY Slip Op 51403(U) [24 Misc 3d 1209(A)] Decided on June 19, 2009 Family Court, Nassau County Greenberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 19, 2009
Family Court, Nassau County

In the Matter of the Department of Social Services o/b/o L. H., C. R., (A) Child(ren) Under Eighteen Years of Age Alleged to be Abused by

against

R. R., Parent Substitute/Father and Neglected by N. H., Mother, Respondents.



XX-XXXX-XX



Shari Landecker, Deputy County Attorney

Office of the County Attorney

1200 Old Country Road

Westbury, New York 11590

Jan Murphy, Esq.

Attorney for the Children

P.O. Box 692

Uniondale, New York 11553

Berkman, Henock, Peterson & Peddy, P.C.

By Joseph E. Macy, Esq.

Attorney for Respondent R. R.

100 Garden City Plaza

Garden City, New York 11530

John Schlingheyde, Esq.

Attorney for Respondent N. H.

550 W. Old Country Road, Suite 405

Hicksville, New York 11801

Ellen R. Greenberg, J.

Before the Court is an Article 10, child abuse and neglect proceeding brought by the [*2]Department of Social Services (hereinafter referred to as "DSS") on behalf of the children: L. H. d.o.b. 12/25/01 and C. R. d.o.b. 08/20/04.

The Respondent R. R. is charged, as a parent substitute, with sexually abusing the child, L. H. The respondent mother N. H. is charged with failing to protect the child.

The petition on behalf of C. R. is brought as a derivative petition against both respondents.

The petitions relating to L. H. and C. R. respectively, allege that:

The respondent parent substitute/father committed, or allowed to be committed, a sex offense upon said child, as defined in the penal law. The respondents parent substitute/father and mother failed to provide said child with proper supervision or guardianship, and said child's physical, mental and emotional condition has been impaired and/or are in [sic] imminent danger of becoming impaired as a result of the failure of the respondents to exercise a minimum degree of care, requiring the aid of this Court, to wit:

a)The respondent parent substitute/father has committed sex offenses upon this six (6) year old child L. H. The respondent parent substitute/father placed a condom on his finger and inserted that finger into the six year old child's rectum. The respondent parent substitute/father did this, on 12/25/07, while babysitting L. H. and his biological child, C. R. C. R. was present in the same bed.

b)On or about 12/25/07, L. H. told the respondent mother that the respondent parent substitute/father inserted his finger in her butt. The respondent mother found the condom. On or about 3/26/08, the respondent mother told a detective from the Nassau County police department that she wanted to stop the investigation as she wanted the respondent parent substitute/father to return to the residence. The respondent mother is unwilling or unable to protect said child. Said child is in imminent danger of physical, mental and emotional harm due to the failure of the respondent mother to provide a minimum degree of care in the circumstances.

A fact-finding hearing was held over a number of dates: March 5, 2009, March 6, 2009, March 9, 2009, March 10, 2009, March 13, 2009, April 13, 2009, April 16, 2009, May 4, 2009 and May 18, 2009.

The Presentment Agency, DSS, called seven witnesses: Detective Edward Mercado of the Nassau County Police Department, Stephanie Castillo, Child Protective Services (hereinafter referred to as "CPS") caseworker, Dr. Bella Silecchia, Director of the Suspected Child Abuse and Neglect Evaluation Program, Detective Patricia Turner of the Nassau County Police [*3]Department's Special Services Squad's, Child Abuse Section, Alicia Barreto, CPS caseworker, Detective Alton Williams of the Nassau County Police Department and Christopher Chillseyzn, Forensic Geneticist.

The respondents did not call any witnesses, nor did the Attorney for the Children.

The respondent N. H. is the mother of the two children: L. H. born December 25, 2001 and C. R., born August 20, 2004. The respondent R. R. is the biological father of C. R. and alleged to be a parent substitute of L. H.

It is alleged that the act of sexual abuse took place in the child's residence. It is clear from the testimony that the two children live with their mother, N. H. There was testimony that while R. R. and N. H. are a couple, they are not legally married. The testimony indicated that Mr. R. is legally married to someone other than N. H. and has a separate residence apart from N. H. and the children. However, he spends a great deal of time with Ms. H. and the two girls, living as a family.The testimony reveals that the child L. H. made a disclosure to her mother on the evening of December 25, 2007, that she was sexually abused by R. R. in her home during the day on December 25, 2007.

On December 26, 2007, the mother, N. H. brought L. H., the subject child to the Nassau County Police Department where they met with Detective Patricia Turner. Also present was Detective Edward Mercado, who was on hand for translation purposes for Ms. H. and if necessary, for L. H.

At that time, N. H. made one statement to Detective Turner in the presence of Detective Mercado. L. H. also made a statement at that time to Detective Turner, also in the presence of Detective Mercado. Both Detective Turner and Detective Mercado testified regarding the statements of N. H. and L. H.

N. H. gave a statement to Detective Turner which was translated by Detective Mercado that, Ms. H. went to work on December 25, 2007 leaving Mr. R. watching the children, L. H. and C. R. She indicated that she left the home at 8 A.M. and returned home at 6 P.M. Ms. H. told Detective Turner that Mr. R. hadn't been feeling well as a result of drinking the night before and that he was hung over and throwing up. She said upon her arrival, he immediately left the home and insisted on taking out the garbage which he had never done in the past. Later that evening, L. H. complained that her "butt" hurt and explained to her mother that "my daddy put his finger in my butt, put something round on his finger and put his finger in my butt and threw away the round thing."

Detective Turner stated that Ms. H. reported that she retrieved a condom from the garbage pail outside of her home which she put in a plastic bag and brought with her to the police department and gave to Detective Turner. Detective Turner testified that during the interview Ms. H. was upset and started to cry. She signed a statement that she wanted R. R. arrested.

Detective Turner and Detective Mercado also testified as to the statement given by the child, L. H.

Detective Mercado reported that the child said that her father put something round on his finger and inserted his finger in her butt. She said this incident took place in her mother's room. He said that L. H. said it hurt when her father put his finger in her butt. Detective Mercado testified that the child spoke English well and therefore the interview was conducted in English. During the interview the child was calm and unwavering. [*4]

Detective Turner's testimony of L. H.'s statement was similar to that of Detective Mercado's. Detective Turner testified that L. H. told her "Daddy put a round thing on his finger and put it in my butt." She said he took the round thing from Mommy's pocketbook from outside the closet.

The child explained to Detective Turner that she was taking a nap with C. R. and Daddy. She said they were lying down on the bed. She described that she was lying on her side, Daddy next to her and her sister lying behind Daddy facing his back.

L. H. told Detective Turner that she was wearing a pink dress, blue socks and underwear which were down a little bit. She said Daddy took them off. She described Mr. R. as wearing a black tee shirt and underwear.

L. H. told Detective Turner that when Daddy put his finger in her butt she said, "Daddy no more like that and Daddy said okay." The child said it hurt a lot. The child stated that this happened in the afternoon while her mother was at work. She was able to state that the day this happened was Christmas. The Detective was very clear when stating that L. H. reported that Mr. R. put his fingers in her butt or booty- not on her butt.

The Presentment Agency also called Detective Alton Williams of the Nassau County Police Department.

Detective Williams testified that he was not the investigating detective on the case, but the detective responsible for the collection of evidence and was not present during any questioning of the child.

Detective Williams testified that on December 26, 2007 he collected evidence in this case from Detective Turner. He stated he collected a clear-like sandwich bag with a condom inside as well as a paper with a drawing. He indicated that he ordered testing as to whether Vaseline was present on the condom and that the results were negative for Vaseline.

He also indicated that he transported the mother and daughter to Nassau County Medical Center on December 26, 2007 for a physical exam to be conducted on the child.

Detective Williams further testified that on December 27, 2007 he drove the mother and child home and that the mother gave him the child's clothing to wit: a pink dress and a child's underwear which items were tested negative for semen. Detective Williams did state however that the clothing had been laundered between December 25, 2007 and December 27, 2007 when he received them.

Detective Williams also testified that he met with the mother, N. H., on March 26, 2008. He indicated that Stephanie Castillo, the CPS caseworker, was also present and served as a translator for Detective Williams, as Ms. H. only speaks Spanish.

Detective Williams reported that Ms. H. told him that she did not want to pursue the case. The mother told him that her daughter lies a lot. Detective Williams also testified that Ms. H. signed a withdrawal statement stating she no longer wanted to pursue the case. This statement was moved into evidence.

Detective Williams added that Ms. H. indicated that even if additional evidence were found implicating Mr. R., she would still not pursue the case.

Stephanie Castillo, the caseworker for CPS, also testified for the Presentment Agency. She indicated that she is a caseworker in the sex abuse unit who investigates allegations of suspected child abuse and neglect. Ms. Castillo testified that she spoke with N. H., L. H.'s [*5]mother, on December 27, 2007 at the Coalition against Child Abuse and Neglect, who told her the story told to her by L. H.

The story told to Ms. Castillo, mirrored the one told by Ms. H. to Detective Turner regarding the incident resulting in these allegations.

Ms. Castillo testified that Ms. H. told her that after L. H.'s disclosure to her, the child said she was hot and went to take a shower. Ms. H. told Ms. Castillo that the child normally takes a shower wearing her underwear but on this particular night, the child had taken the underwear off during the shower and washed it, which concerned her.

Ms. Castillo testified that during her meeting with Ms. H. on December 27, 2007 she told Ms. H. that the children were not to have any contact with Mr. R. during the investigation of this matter.

Ms. Castillo went on to testify regarding a home visit with Ms. H. and the children on January 14, 2008. At that time Ms. H. told Ms. Castillo that she was overwhelmed financially and that she wanted Mr. R. to see the children. She also said she was not sure if the child was telling the truth about Mr. R. putting his finger in her butt.

Ms. H. stated that Mr. R. denied the allegations to her and told her that he had taken the condom out of her purse and used it to go to the bathroom and pleasure himself. When Ms. Castillo asked Mom if she believed Mr. R., Mom said she was not sure.

When Ms. Castillo spoke with the children on January 14, 2008, L. H. reported that she had lied about Mr. R. abusing her. L. H. indicated to Ms. Castillo that her sister told her it's her fault that they can't see their father and that she misses her father.

In a telephone conversation on March 13, 2008 Ms. H. told Ms. Castillo that she wanted to stop the police investigation as she was sure that nothing happened between the child and Mr. R.

Ms. Castillo and Detective Williams again met with the child, L. H., and Ms. H. on March 26, 2008 at Ms. H.'s request. Ms. H. told Ms. Castillo and Detective Williams that she wanted to stop the police investigation and wanted Mr. R. to return home. She stated that she depended on him financially and to watch the children at times. She added that she did not believe L. H. was telling the truth about the incident.

Ms. Castillo testified that L. H. told her that her mom told her to say that what she reported about Mr. R. was a lie. Ms. Castillo stated that she asked L. H. to tell her again what she had originally told Detectives the first time they met. When L. H. told her what she originally said had happened to her, she began to cry at the point that she said it hurt when he put his fingers in her butt.

She eventually admitted to Ms. Castillo that her attempt to recant was so that Mr. R. would be able to come home.

L. H. further reported that she had been having regular phone contact with Mr. R.

Ms. Castillo also testified that the younger child, C. R., who was supposedly lying on the bed with Mr. R. and L. H. on December 25, 2007, told her that her sister was lying about Mr. R. abusing her but nothing more.

The Presentment Agency also called Alicia Barreto, the CPS caseworker. Ms. Barreto testified that she interviewed the younger child, C. R., on October 27, 2008, ten months after the date of the incident. This interview took place in Family Court. [*6]

Ms. Baretto testified that she spoke with the child in both English and Spanish. She stated that the law guardian was present and directed the child to tell Ms. Barreto what she had told the law guardian. Ms. Barreto testified that the child stated that her father put a condom on his finger, which she demonstrated and then she pointed to her buttocks. She told Ms. Barreto that it was her sister to whom this happened.

Ms. Barreto did testify that just prior to interviewing the child, she had a conversation with Ms. Murphy, the Law Guardian, who explained the allegations against the father, as Ms. Barreto had no familiarity with the case. She also testified that the child was present in the room when Ms. Murphy was describing the allegations to her. Ms. Barreto explained that when C. R. described what her father had done, she used the word condom.

The Presentment Agency called Dr. Bella Silecchia as an expert witness. Dr. Silecchia is the director of pediatric ambulatory care and the director of the suspected child abuse and neglect evaluation program (hereinafter referred to as "SCAN") at Nassau University Medical Center. Dr. Silecchia was qualified as an expert in the area of child abuse and pediatric medicine. Dr. Silecchia testified that the child, L. H., was brought to the SCAN Center on December 27, 2007 for a forensic rape examination two days after the assault allegedly occurred.

Dr. Silecchia testified that she examined L. H. She testified that she did not find any evidence of semen. Upon examination of the child's anus, she observed healing fissures and fresh fissures. She explained that a fissure is a tearing of the skin which is the result of some type of trauma to the area. The healing fissure was in the 3 o'clock position and the fresh fissures were between the 9 and 10 o'clock positions. She testified that the older fissure was probably a couple of weeks old as scar tissue was forming in that area. Dr. Silecchia estimated the fresher fissures to be within two or three days old as they were only starting to heal.

She explained that whatever caused this had to do with the stretching out of the anal area allowing the skin to rupture, break or tear. Dr. Silecchia was clear in her testimony that the child had no history of constipation or hard stools but had a history of diarrhea. Dr. Silecchia testified that the most common cause of fissures is severe constipation, not diarrhea. She did state, however, that while severe diarrhea can cause anal fissures, they would be superficial, not deep ones. She added that there were no reports in this case indicating that there was severe diarrhea of this kind.

It is not disputed that on November 30, 2007 L. H. had been vomiting and had diarrhea. She was hospitalized from approximately December 1, 2007 until December 14, 2007 for appendicitis and eventually, an appendectomy.

While in Nassau University Medical Center and Schneider's Children's Hospital during the time of the appendicitis and appendectomy, L. H. had diarrhea. It continued on and off for one week prior to being seen by Dr. Silecchia on December 27, 2007. It was also confirmed by Dr. Silecchia in reviewing the medical records that L. H. had been prescribed Ampicillin, an antibiotic, for fourteen days, which is known to cause diarrhea. Dr. Silecchia also confirmed that the mother reported that the child had a poor appetite and was primarily on liquids which, she added, would also contribute to diarrhea in a patient. Additionally, the child had been given Tylenol suppositories. The mother reported that she had observed some anal or rectal bleeding following a suppository treatment.

Dr. Silecchia explained that diarrhea could cause the mucosa to become irritated and that [*7]any amount of subsequent tearing would depend on the force that was applied either by passing of large stool or by digital penetration of a male adult finger.

She also testified that she observed one deeper, healed fissure further along in the healing process from a few days to a couple weeks and that the smaller fissures were fairly superficial.

The medical records are in evidence and have been reviewed by the Court.

The Presentment Agency called Christopher Chillseyzn, a forensic geneticist for the Nassau County Department of Forensic Genetics.

After a thorough explanation of what DNA is and how to analyze DNA, Mr. Chillseyzn testified as to the testing he did regarding the respondents N. H. and R. R., as well as the child L. H.

Mr. Chillseyzn explained that on January 9, 2008 he received a rape kit which was taken from the victim L. H. containing a buccal swab. He also stated that he received a bag containing a white paper folded around a condom and condom wrapper.

The buccal swab from L. H. and the condom both inside and out were examined.

Preliminarily, Mr. Chillseyzn indicated that both samples were tested for semen. Both tests yielded negative results for semen. In fact, the witness stated that he did not detect any semen in this case at all.

At the time that the test was done on the condom in January, 2008 it was determined that the DNA profile of the donor for the inside of the condom was from a single source, unknown male.

The outside of the condom had a mixture of DNA. The major contributor on the outside of the condom was the same unknown male found on the inside of the condom.

Mr. Chillseyzn further testified that after he did his analysis on the condom and on the child he received a sample from the respondent R. R. on October 29, 2008. He analyzed the sample provided by Mr. R. and determined that the DNA alleles from Mr. R. were the same as those of the unknown male donor found on the inside of the condom and the major contributor of DNA to the mixture on the outside of the condom.

Mr. Chillseyzn also indicated that he received a buccal swap from the mother, N. H., on September 23, 2008. He reported that he analyzed this sample and compared it to the mixture found on the outside of the condom and determined that both the victim L. H. and the mother N. H. could not be excluded as minor contributors to the mixture.

Mr. Chillseyzn stated that within a reasonable degree of scientific certainty, R. R. was the single source of the DNA on the inside of the condom as received, as well as the major contributor of DNA of the mixture found on the outside of the condom, and again that neither L. H. nor N. H. could be excluded as possible contributors of DNA to that mixture.

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 of neglect of the child. [*8]

It is undisputed that R. R. was left to care for the children on December 25, 2007 while N. H. went to work. It is clear from all the testimony that while he is the biological father of C. R., L. H. also believes him to be her father. She refers to him as Daddy and knows no other man to be her father. Despite the fact that R. R. and N. H. are not legally married and that L. H. does not bear his name, they hold themselves out as a family where Mr. R. is the father to L. H. as well as C. R.

As such, the Court does find that R. R. is a person legally responsible for the care of L. H.

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 L. H., made a statement to Detective Patricia Turner in the presence of Detective Mercado. The mother, N. H., also gave a detailed statement to Stephanie Castillo the CPS caseworker.

The statement that L. H. gave to Detective Turner as well as L. H.'s statement as conveyed to Stephanie Castillo by N. H. were consistent with one another.

While there are some minor differences in the details of the statements, they are all essentially identical in their content.

The issue that must be examined is whether L. H.'s out of court statements to these witnesses has been sufficiently corroborated as required by FCA § 1046(a)(vi) before a finding of abuse or neglect can be made. Mere repetition of the statement is not enough. See Matter of Nicole V., supra where the Court of Appeals held that "repetition of an accusation by a child does not corroborate the child's prior account of it."

In the instant matter the Presentment Agency called seven witnesses. Four of the witnesses testified as to L. H.'s statement and actions. Dr. Silecchia testified as to medical findings. Mr. Chillseyzn testified as to forensic findings. Alicia Barreto testified as to C. R.'s statement. The Court had the unique opportunity to observe all of the witnesses while they testified. The Court observed the demeanor and assessed the credibility of each of the witnesses. The Court found all of the witnesses to be truthful and credible.

Dr. Silecchia testified that she observed fissures in the child's anus at two separate locations. She indicated that the fissures observed in the 3 o'clock position were at a stage of healing of probably two weeks which was also about two weeks before this incident was alleged to have occurred. Additionally, Dr. Silecchia testified that there were fresher fissures between the 9 and 10 [*9]o'clock positions which were most likely two or three days old as they were only in the beginning stages of healing.

It is clear from the testimony and the medical evidence that L. H. underwent an appendectomy on December 1, 2007 and remained in the hospital for approximately two weeks. During this time, L. H. suffered with diarrhea. She was also taking antibiotics which are known to cause diarrhea. There was additional testimony that she had not been eating solid food, but rather, was on a liquid diet, which added to her symptoms of loose stools and diarrhea.

While Dr. Silecchia testified that her medical findings were consistent with the history of penetration of the child's anus by an adult male finger, she also acknowledged that diarrhea can sometimes cause irritation, which when exacerbated can result in anal fissures.

Additionally, there was testimony that there were fissures in advanced stages of healing approximately two weeks old, well before this incident.

The Court finds that the medical evidence is inconclusive. It is clear that L. H. suffered from a prolonged period of diarrhea. Although Dr. Silecchia testified that the injuries she observed are consistent with anal penetration by an adult male finger it cannot be ruled out that the existent fissures were caused as a result of diarrhea and further irritation.

In reviewing the testimony of Mr. Chillseyzn, the Court finds that there is no conclusive evidence that this condom ever came into contact with the child L. H. While Mr. Chillseyzn testified that neither L. H. nor her mother could be excluded as contributors to the DNA mixture on the outside of the condom, it was clear that the existence of the child's DNA was also present because children have similar DNA make-up as their parents. Therefore, the child's DNA would always be present if the mother came into contact with the condom, which we know to be true in this case.

While the Court found Ms. Barreto to be credible, the statement of the child C. R. will not be considered in this determination. The disclosure by C. R. ten months after the incident is suspect. The Court makes no finding of foul play, but rather, makes this determination solely based on the child's tender years and failure to report anything at the time of the incident. The fact that C. R. actually used the word condom renders her statement questionable. It is more likely that C. R. overheard the telling and retelling of the story, explaining how she may have had all the details. Therefore, the Court will not consider C. R.'s statement in this determination.

Nonetheless, the Court does find that L. H.'s statements are sufficiently corroborated to support a finding of sexual abuse by the respondent, R. R.

The child made a disclosure to her mother that her daddy took a round thing from mommy's pocketbook, put it on his finger and put his finger in her butt and then threw the round thing into the garbage.

The mother immediately went to the trash and recovered the condom which she brought to the police department. The child never used the word condom. There is no evidence that she knew what a condom is. She explained what she saw and what she saw Mr. R. do with it.

The mere existence of the condom in this Court's view, corroborates the child's statement.

The DNA test performed on the condom, while not probative regarding contact to the child, is probative in other regards. Mr. Chillseyzn indicated that the DNA found on the inside of the condom was exclusively that of R. R.

While Mr. R. explained to Ms. H. that he used the condom to pleasure himself, it is significant that there is no evidence of semen in the condom as testified by Mr. Chillseyzn. The [*10]Court finds Mr. R.'s explanation to be incredible.

The fact that Mr. R. left immediately and threw out the trash corroborates the child's story. This is something that the mother reported he had never done before. It appears that Mr. R. threw out the trash solely to dispose of the condom.

Further corroboration is the fact that the child changed her routine when showering. The mother indicated that L. H. usually showered in her underwear but on the date of the incident, removed her underwear and washed it, which is consistent with her story that something happened that day.

The Court found that L. H.'s statements to her mother and Detective Turner were credible. The respondent, R. R. argues that the child's statements as testified to, are unreliable as they were fraught with inconsistencies. Additionally, it was argued that the statement was unreliable as it was made in English when the child's primary language is Spanish.

The Court dismisses these arguments as not persuasive.

It is clear that the child reported that she did not know the difference between the truth and a lie and that she was mistaken in reporting her sister's age and even her own birthday, but the Court does not find this to be significant. It is not unusual that a six year old child would be confused as to some of these facts especially in light of the trauma of a sexual assault. The child told the story to her mother and to Detective Turner. The child was consistent each time she told the story as to the events of Christmas, 2007 with many details. The child was able to describe the condom, the positions she was lying in on the bed as well as the pink dress and blue socks that she was wearing. It was clear from the testimony that it was the child's choice to speak in English rather than Spanish and she was comfortable in doing so.

The Court has considered L. H.'s subsequent statement where she said the assault did not happen. L. H. later reported that she only said Daddy did this to her because she was angry with him for forcing her to eat something when she did not want to eat.

It is this later statement that the Court believes to be coerced. It is clear from the testimony that L. H. was brought to Detective Williams and Stephanie Castillo in March of 2008 by her mother to recant her initial statement and that she was forced to do so. She eventually broke down and revealed that she was told by her mother to say it did not happen so Daddy could come home. She began to cry again when telling Stephanie Castillo what she had originally reported when in her office on the previous occasion with the detectives.

The Court finds L. H.'s story of sexual assault by R. R. to be credible and sufficiently corroborated.

With regard to the allegations pending against the mother, N. H., it is clear that she believed her daughter at the time the disclosure was made. It appears that Ms. H. knew what L. H. was referring to when she said Mr. R. took a round thing from Mom's purse and put it on his finger.

It is clear from the evidence that Ms. H. believed her daughter's version of events when told to her. That she did not hesitate to search for the condom, to report immediately to the police department and to follow through with a medical examination shows she had no doubt as to the veracity of the story. That she provided the condom, and the child's clothing to the police supports her belief in the child's story. That she began to cry when telling the story supports her belief.

Additionally, the mother reported that the child changed her routine while in the shower. She was concerned by this, and therefore, reported it to the authorities. [*11]

It was not until a couple of weeks later, when the dust settled and she did not have the financial assistance of Mr. R., that Ms. H. belief in the story began to wane. While Ms. H. now claimed that her daughter lies, the witnesses testified that when they met with Ms. H. in December, she presented with no doubt as to her daughter's veracity. There was no other evidence to support her claim that the child lies.

When the child was brought to recant her story, the child actually stated that she had to say it was all a lie in order for Daddy to come home.

Additionally, it was clear that even though Ms. Castillo had directed Ms. H. not to allow communication between the children and Mr. R. that they were having what seems to be daily telephone contact which was permitted by Ms. H.

Statements by Ms. H. that she was struggling financially without Mr. R. were made in January. Subsequently, Ms. H. reported that she doubted L. H.'s story.

It is clear to this Court, that Ms. H.'s desire to stop the prosecution of this matter was motivated by her desire to have Mr. R. back in the home for both financial and personal reasons other than the protection of her child. She was clear when she attempted to terminated the prosecution of the matter that even if more conclusive evidence were discovered, she would still not pursue the matter.

The respondents 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 1.)

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 L. H. was sexually abused by R. R. pursuant to Family Court Act § 1012(e)(ii) in violation of Penal Law § 130.50 and § 130.67.

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

The Court also finds that it has been established by a preponderance of the evidence that N. H. failed to protect her children from R. R., who she knew or should have known had abused L. H. The Court makes a finding of neglect against N. H. as to the children: L. H. and C. R.

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 THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW [*12]GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

E N T E R:

________________________

Honorable Ellen R. Greenberg

Judge of the Family Court