Matter of Candice D.

[*1] Matter of Candice D. 2009 NY Slip Op 52262(U) [25 Misc 3d 1223(A)] Decided on November 10, 2009 Family Court, Richmond County DiDomenico, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2009
Family Court, Richmond County

In the Matter of Candice D. Edrice D. Justice D. Mirash S. Nikiah D. Tristan D. Children Under the Age of Eighteen Years Alleged to be Abused and Neglected by Donna J., Joseph J.. , Respondents.



NA-01371-6/07



Petitioner (Administration for Children Services)

Victoria Gibbons, Esq.

51 Stuyvesant Place

Staten Island, New York 10301

Attorney for the child Justice

Roseann Scotto DiRinaldi, Esq.

5926 Amboy Road

Staten Island, NY 10309

Attorney for the children Candice, Mirash, Edrice, Tristan, Nikiah

Benjamin Haber, Esq.

36 Richmond Terrace, Suite 301

Staten Island, NY 10301

Attorney for Respondent Mother

Erin Colgan, Esq.

2156 Victory Boulevard

Staten Island, NY 10314

Attorney for Respondent Father

John Orlando, Esq.

354 84th Street

Brooklyn, NY 11220

Catherine M. DiDomenico, J.

On March 28, 2007, The Administration for Children's Services (hereinafter "ACS") filed an abuse and neglect Petition against Joseph J.(hereinafter "Respondent Father") and Donna J. (hereinafter "Respondent Mother") alleging that, between October 2006 and February 2007, Respondent Father sexually abused the child Justice on at least four occasions. The Petition alleges that Respondent Father is a person legally responsible for Justice, Candice and Mirash and is the biological father of Nikia, Tristan and Edrice. The Petition further alleges that similar allegations of sexual abuse were reported by the child Candice and a minor aunt of the subject children against Respondent Father. Last, the Petition alleges that Respondent Father has inflicted corporal punishment on the child Edrice and choked the child Justice on or about March 17, 2007.

With respect to Respondent Mother, the Petition alleges that Respondent Mother knew or should have known that her children were sexually abused by Respondent Father. The Petition further alleges that, upon learning of Justice's disclosure of the sexual abuse allegations against Respondent Father, Respondent Mother told her to lie about the incidents then kicked her out of her home. The Petition alleges that the remaining children are similarly in danger of abuse and neglect as a result of the abuse alleged herein.

On January 17, 2008, with leave of Court, ACS filed an amended Petition further alleging that, on or about December 5, 2007, the child Candice disclosed to an ACS caseworker that on a number of occasions between March and May 2006, Respondent Father performed oral sex on her, masturbated in her presence and inserted his finger into her vagina.

This case was tried by this Court on December 3, 2007, June 18, 2008, November 19, 2008, December 3, 2008, and June 9, 2009. ACS called three witnesses at trial: (1) Shawn Ralph, ACS caseworker; (2) Jenna Diacomanolis, Director Child Advocacy Center and (3) Cynthia Donnelly, Child Welfare Supervisor. ACS introduced the following document into evidence: ORT dated 3/22/07 (Petitioner's 1).

The child Justice testifiedat trial in Court in the presence of all parties' counsel but not in the presence of the parties. See Matter of Q. L.-H., 27 AD3d 738 (2d Dept. 2006). The attorney for the child Justice introduced a letter into evidence (Law Guardian's 1). [*2]

Respondent Mother testified on her own behalf at this trial. Respondent Father failed to testify at this trial and did not even attend many of the trial dates, notwithstanding proper notification. The Court draws the strongest adverse inference against Respondent Father for his failure to testify or otherwise dispute any of the evidence offered against him at trial. Matter of Commissioner of Social Services v Philip De G., 59 NY2d 137 (1983). On application, the Court took Judicial Notice of a neglect finding entered against Respondent Mother under Family Court docket numbers NN-4019/99 and 4020/99.

Findings of Fact

After considering the testimony of ACS' witnesses, and assessing their credibility, the Court finds their testimony credible. The Court finds Respondent Mother's testimony not credible on the facts relevant to this proceeding.

There is no dispute that Respondent Father is a person legally responsible for Justice, Candice and Mirash because he lived in the home with the children and took on a parental role for them.

Justice's Disclosure

Ms. Diacamanolis is the former Senior Director of the Child Advocacy Center, Staten Island. She credibly testified that, on March 23, 2007, she met Justice in the reception area of the Child Advocacy Center, Staten Island where she was accompanied by her maternal great grandmother. Without any questioning on her part, Justice said "I know why I'm here, Sha is a pedophile, that's why I'm here". Justice clarified that she refers to Respondent Father as "Sha." When asked to explain the word pedophile, Justice explained that to her, it means "a man who molests kids." Justice said she ran away from Respondent Mother's house to her great grandmother's house because "she couldn't take it anymore". Justice stated that Respondent Father touched her and her sister Candice inappropriately on a number of occasions. At the time of these disclosures, Justice presented as nervous, upset and angry.

Ms. Diacamanolis credibly testified that Justice was very forthcoming and her recitation of the allegations was completely spontaneous. Justice had direct eye contact with her during the entire conversation. This child was concerned that no one would believe her about the abuse she had been enduring at the hands of Respondent Father. When asked why she was fearful noone would believe her, Justice explained that her sister had already disclosed the abuse and "noone believed her".

Later that evening, Justice was interviewed by a Detective and Caseworker. Ms. Diacamanolis was not present for that interview. However, when Justice came out of the interview room, she was smiling and told Ms. Diacamanolis that she had "told them the truth and they believed me." Ms. Diacamanolis met with the Detective and Caseworker after they interviewed Justice. Justice's statements in that interview were consistent with the statements made to her. [*3]

ACS Caseworker Mr. Ralph viewed Justice's interview at the child Advocacy Center. He credibly testified at trial that, during that interview, Justice said that Respondent Father touched her inappropriately on four specific occasions. The first incident occurred while she was taking a shower. Respondent Father pulled the shower curtain back and observed Justice's naked body. When Justice asked him what he was doing, Respondent Father left the bathroom. Justice stated that two additional instances occurred while she was lying on the couch. On one occasion, Justice awoke and found Respondent Father fondling her. On another occasion, Respondent Father tried to put his hand down her pants to touch her vagina. Justice said that the four incidents occurred between August 2006 and February 2007.

Justice also disclosed that Respondent Father choked her by pulling on the collar of her coat. When interviewed about that incident, Respondent Father admitted pulling Justice by her coat but claimed he did not actually choke this child.

Candice's Disclosure

Caseworker Ralph spoke with Candice for the first time in May 2007. Candice said that "things happened" between her and Respondent Father. Caseworker Ralph testified that he did not interview Candice because it is ACS' policy to interview sexual abuse victims in the presence of the Child Advocacy Center professionals. In fact, Candice was never interviewed by the Child Advocacy Center at any time allegedly because she was remanded to a juvenile detention facility.

Caseworker Ralph interviewed Candice again in January 2008 at the Bronx Detention Center where she was remanded on a juvenile delinquency case. Candice disclosed that, between March 24, 2006 through May 29, 2006 Respondent Father sexually abused her on four occasions while Respondent Mother was incarcerated and while Respondent Father was primarily responsible for her care and the care of the remaining children. Specifically, Candice said that Respondent Father masturbated in front of her, touched her vagina, and performed oral sex on her. The first two incidents occurred in Respondent Mother's bedroom. Candice said that she went to sleep fully clothed, but woke up in the morning covered in a black sheet naked. Candice said that during last two occasions she observed Respondent Father's erect penis while she was lying on the bed on her back. Candice said that Respondent Father inserted his hand into her vagina and fondled her breast. Candice told caseworker Ralph that the first incident was March 24, 2006. Candice said that she remembered that day because it was her birthday. Candice said that the last incident happened on May 29, 2006, the day Respondent Mother was scheduled to return home from jail.

Candice also said that Respondent Father physically disciplined her by pushing her, but no further details were given with respect to Respondent Father's alleged use of physical force on this child.

Justice Recants[*4]

Caseworker Ralph testified that Respondent Mother gave ACS an April 30, 2007 letter Justice wrote to Respondent Mother in which Justice apologized to her Mother "for lying about Daddy Sha . . . I didn't think it would go this far . . . I was just upset, please forgive me." Caseworker Ralph never spoke with Justice about the letter.

ACS Supervisor Ms. Donnelly credibly testified that she spoke with Justice in November 2007, approximately seven months after she wrote the letter. Justice showed up at the ACS field office extremely irate, yelling, screaming and cursing. Ms. Donnelly testified that Justice said she was sorry for lying about "Daddy Sha." Justice wanted to return to Respondent Mother's home. Justice thought that writing the letter would trigger her release from foster care and allow her to return to her mother's home.

Justice told Ms. Donnelly that noone believed she was molested "so why bother going forward anymore". Ms. Donnelly discussed the importance of telling the truth with Justice. Justice then said that she was telling the truth when she said that Respondent Father sexually abused her and Candice.

Caseworker Ralph

Caseworker Ralph testified that, in March 2007, Justice told Respondent Mother that Respondent Father sexually abused her. Justice said that Respondent Mother's response was "three strikes you're out." Justice further said that Respondent Mother told her to lie when ACS was investigating sex abuse allegations against Respondent Father with regard to another child. Caseworker Ralph further credibly testified that Candice said she told Respondent Mother she was sexually abused by Respondent Father. Candice said that Respondent Mother called her a "liar".

Caseworker Ralph spoke with Edrice, then eight years old. Edrice denied that Respondent Father kicked him in the stomach. Caseworker Ralph spoke with Mirash, then twelve years old. Mirash said he never observed Respondent Father hitting any of his siblings. The children Nikiah and Tristan were too young to be interviewed.

Respondent Mother's Testimony

Respondent Mother testified that she was incarcerated from January 2006 through May 2006. There is no dispute that Candice and Justice allege that the sexual abuse occurred while Respondent Mother was incarcerated and while Respondent Father was in the home caring for them. Respondent Mother claims she did not know about the sexual abuse allegations until Caseworker Ralph appeared at her home in March 2007. However, Respondent Mother admitted that while she was incarcerated she spoke with Respondent Father on the phone and he informed her that ACS was at their home. Respondent Mother admitted that she knew that ACS was investigating sexual abuse allegations by Respondent Mother's niece Elizabeth against Respondent Father. Respondent Mother claims those allegations were unfounded.[*5]

Respondent Mother denies kicking Justice out of the home. Respondent Mother claims that on March 19, 2007, she sent Justice then thirteen years old, in a cab to her great grandmother's house because they engaged in a verbal dispute. Respondent Mother testified that Justice could take public transportation to get to school in Staten Island from her great grandmother's home in Brooklyn. Respondent Mother testified that she did not believe Justice and Candice were sexually abused. Respondent Mother admitted that, after she learned of Justice and Candice's sexual abuse allegations, she remained in the home with Respondent Father. Respondent Mother testified that she is currently separated from Respondent Father but he continues to reside in the same building in a different apartment.

The Applicable Law

In a child protective proceeding, a child's previous statement relating to the allegations of abuse or neglect is admissible in evidence. See Family Court Act Section 1046 (a)(vi). However, the statement must be corroborated before the court can rely on them. See Family Court Act Section 1046 (a)(vi). Corroboration is required because the out of court statements are hearsay and the statute requires some further evidence to establish their reliability. See Matter of Nicole V., 71 NY2d 112, 118 (1987). The child's statements can be corroborated by any admissible evidence that tends to confirm it. See Matter of Margaret W., 83 AD2d 557 (2d Dept. 1981). The Family Court has "considerable discretion to decide whether the child's out of court statements describing incidents of abuse or neglect has, in fact, been reliably corroborated and whether the record as a whole support a finding of abuse." See Matter of Candice S., 38 AD3d 786 (2d Dept. 2007).

It is well established that out of court statements of siblings may cross-corroborate one another, depending on the detail and consistency in the statements. Matter of Francis Charles W., 71 NY2d 112 (1987); See Matter of Latisha W., 221 AD2d 645 (2d Dept. 1995); Matter of Alan G., 185 AD2d 319 (2d Dept. 1992).A child's recantation of abuse does not necessarily require the Court to accept the later statements as true rather, the recantation of the initial statement creates a credibility issue for the fact finder to resolve. See Matter of Tristan R., 63 AD3d 1075 (2d Dept. 2009).

The Court finds that Justice's detailed and explicit out of court statement is corroborated by Candice's statement in which she describes similar incidents of abuse. See Matter of Nicole V., 71 NY2d 112 (1987);Matter of Joshua B., 28 AD3d 759 (2d Dept. 2006); Matter of Latisha W., 221 AD2d 645 (2d Dept. 1995). Specifically, Justice and Candice each described incidents that occurred while Respondent Mother was incarcerated in which they awoke from their sleep and found Respondent Father fondling them. Justice said that Respondent Father attempted to touch her vagina and Candice said that Respondent Father actually placed his hand inside her vagina and performed oral sex on her. Justice and Candice's out of court statements are further corroborated by the uncontroverted evidence that similar allegations were made by Respondent Mother's niece. See Matter of Astrid C., 43 AD3d 819 (2d Dept. 2007). [*6]Furthermore, the Director of the Child Advocacy Center credibly testified that spontaneously, without any questioning on her part, Justice confided in her that Respondent Father touched her and Candice inappropriately.

As for Justice's recantation, the Court finds that after listening to her in camera testimony and watching her testify, it does not undermine her initial disclosure to such an extent as to require dismissal of this Petition. See Matter of Tristan R., 63 AD3d 1075 (2d Dept. 2009). Specifically, the Court finds that her recantation was motivated by her desire to return home to Respondent Mother and her siblings and not by the untruthfulness of the allegations.

Accordingly, a finding of sexual abuse is made against Respondent Father for Justice and Candice. A finding of derivative neglect is made against Respondent Father for Edrice, Mirash, Nikiah and Tristan as the evidence of sexual abuse of Justice and Candice indicates a fundamental defect in the duties of parenthood. See Matter of Douglas E., 191 AD2d 694 (2d Dept. 1993). The allegations of excessive corporal punishment against Respondent Father are dismissed as not proven by a preponderance of the evidence. A finding of neglect is made against Respondent Mother in that she knew or should have known that her children were in imminent danger of sexual abuse and the evidence of a prior neglect finding against her. On this point, this Court finds Respondent Mother's testimony not credible. See Matter of Damien W., 174 AD2d 741 (2d Dept. 1991). A further finding is made against Respondent Mother for the derivative neglect of Edrice, Mirash, Nikiah and Tristan. See Matter of Selena J., 35 AD3d 610 (2d Dept. 2006).

Dated: November 10, 2009____________________________

Hon. Catherine M. DiDomenico