Matter of Nassau County Dept. of Social Servs.

[*1] Matter of Nassau County Dept. of Social Servs. 2008 NY Slip Op 52243(U) [21 Misc 3d 1126(A)] [21 Misc 3d 1126(A)] Decided on October 20, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2008
Family Court, Nassau County

In the Matter Of a Proceeding under Article 10 of the Family Court Act Nassau County Department of Social Services o/b/o C. R., L. H. Children Under Eighteen Years of Age Alleged to be Abused by R. R. and Neglected by N. H., Respondents,



XX-XXXX-XX

Ellen R. Greenberg, J.

The Petitioner herein, Department of Social Services (DSS), has moved this Court, by way of Notice of Motion, for an Order requiring Respondent, R. R., to submit to a buccal swab specimen for DNA analysis and testing by the Nassau County Department of Forensic Genetics and requiring that said sample be submitted in the presence of and under the direction of the Nassau County Police Department.

The respondent, R. R., has submitted papers in opposition to Petitioner's motion. The Attorney for the Child, L. H., has submitted an Affirmation in Support of Petitioner's motion. The Attorney for Respondent, N. H., has submitted an Affirmation declining to take a position.

Now upon reading of all the papers and inquiry into the facts and the circumstances of the case, the Court makes the following Decision and Order:

Under FCA 1038-a, this Court is authorized to order a Respondent to provide non-testimonial evidence, to wit: a DNA sample, when it finds probable cause that the DNA evidence is reasonably related to establishing the allegations in the petition.

The petition set forth by the Department of Social Services alleges that on December 25, 2007, the Respondent, R. R., parent substitute of L. H., while in the presence of C. R., daughter of respondents, R.R. and N. H., committed sex offenses upon L. H.. Said alleged offense is that R. R. placed a condom on his finger and inserted that finger into L. H.'s rectum. The petition further alleges that on or about December 25, 2007, "L. H. told the respondent mother that respondent parent substitute inserted his finger into her butt". The respondent mother retrieved the condom and reported the incident to the police. On or about March 26, 2008, the respondent [*2]mother told a detective that she wanted to stop the investigation as she wanted the respondent parent substitute to return to the residence.

Respondent R.R.'s attorney submits that the records from the Department of Social Services indicate that the child was examined at the Nassau University Medical Center and that the reports indicate " virtually no evidence of a physical injury consistent with the alleged assault" and the observed abnormality to the child's anus was the presence of "healed and healing fizzures". [Respondent, R. R., Affirmation in Opposition, paragraph "5"].

The recovered condom was turned over to the Nassau County Police Department for testing in order to test for the presence of DNA on the condom [Respondent, R. R., Paragraph 7]. The Nassau County Department of Forensic Genetics revealed that the subject child, "L. H., cannot be excluded as a source of the genetic mixture found on the condom" [Petitioner Reply Affirmation Paragraph "4"]. The report also revealed the presence of identical male genetic material on both the inside and the outside of the condom but failed to reveal the presence of semen [Petitioner Reply Affirmation Paragraph 5]. DSS records reveal that while R. R. denied abusing the child, he admitted to using the condom to pleasure himself [Petitioner Reply Affirmation Paragraph 6].

NY Fam. Ct. Act. 1038-a provides:

Upon motion of a petitioner or a law guardian, the court may order a respondent to provide non-testimonial evidence, only if the court finds probable cause that the evidence is reasonably related to establishing the allegations in a petition filed pursuant to this article. Such order may include, but not be limited to, provision for taking samples of the blood, urine, hair or other materials from the respondent's body in a manner not involving an unreasonable intrusion or risk of serious injury to the respondent.

Family Court proceedings do not focus on penal sanctions but are instead directed to the protection of minors. Consequently, any relevant and material evidence may be admitted in any hearing under Family Court Act Article 10, Nassar on Behalf of Santmire v. Santmire, 99 AD2d 377, 473 NYS2d 84 (4th Dep't 1984); Matter of Charles DD, 163 AD2d 744, 558 NYS2d 720 (3rd Dep't 1990).

Family Court Act 1038-a recognizes that when the government seeks to discover evidence by means which intrude upon a person's bodily integrity, the government action implicates the Fourth Amendment prohibition against unreasonable searches and seizures, and should be justified by probable cause that the evidence is reasonably related to establishing the allegations in the petition. The legislature imposed this higher burden on parties in an Article 10 proceeding, only as to the discovery of "nontestimonial" evidence obtained from a respondent's physical body. In re Tyler S., 192 Misc 2d 728, 748 NYS2d 215(2002).

Here, probable cause exists to believe that the DNA evidence is reasonably related to the allegation in the petition and that obtaining the evidence, by means of a buccal swab, does not present an "unreasonable intrusion or risk of injury" to the Respondent, R. R., In re Pederson, 187 Misc 2d 486, 723 NYS2d 344(Kings Co. 2001).

There is a sufficient nexus shown between the allegations set forth in the petition and the need given for DNA testing. There is a clear nexus between the statements made by the child, [*3]the retrieval of the condom by Respondent, N. H., and the DNA findings thus far, which warrant the testing, In the Matter of Henry G., 157 Misc 2d 959, 559 NYS2d 425 (1993); Marino v. Kahn, 49 AD3d 741, 855 NYS2d 560 (2nd Dep 't 2008).

Respondent's contention that the buccal swab would violate his constitutional rights are without merit. When balancing the seriousness of the allegations, one must weigh the importance of the evidence to the investigation, and the unavailability of less intrusive means of obtaining evidence, against a concern for the petitioner's constitutional right to be free from bodily intrusion. In re Abe A., 56 NY2d 288, 452 NYS2d 6 (1982). In the instant case, the need for DNA evidence outweighs the respondent's constitutional right to be free from bodily intrusion. A buccal swab is perhaps the least intrusive means of obtaining DNA evidence and does not violate Respondent's Fourth Amendment right to unreasonable search and seizure as there exists probable cause that the evidence is reasonably related to establishing the allegations in the petition, In the Matter of Tyler S., supra .

ORDERED, that the Petitioner's motion is granted in the following respects: The Respondent, R. R., is to submit to a buccal swab specimen for DNA analysis and testing by the Nassau County Department of Forensic Genetics and Requiring in the presence of and under the direction of the Nassau County Police Department within days from this Order.

ENTER

_____________________________________

Hon. Ellen R. Greenberg

J.F.C.

Dated: October 20, 2008