Matter of Kyanna T. v Winston R.

[*1] Matter of Kyanna T. v Winston R. 2010 NY Slip Op 50663(U) [27 Misc 3d 1210(A)] Decided on March 19, 2010 Family Court, Kings County Olshansky, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2010
Family Court, Kings County

In the Matter of a Proceeding Under Article 10 of the Family Court Act, Kyanna T., JAMELLA R., KEN T., ISAIAH R. Children under the Age of Eighteen Alleged to be Abused and Neglected by

against

Winston R. JUNE R., Respondents.



NA-01022 — 24/07



APPEARANCES:

Nicola Gibson, Esq., for New York City Children's Services

Assistant Corporation Counsel

330 Jay Street 12th Floor

Brooklyn, NY 11201

Matthew J. Kazansky, Esq., for Respondent Mother

26 Court St. (Suite No. 2014)

Brooklyn, New York 11242

Sandra L. Schpoont, Esq., for Respondent Father

Fee Schpoont and Cavallo, LLP

50 Broadway (Suite # 1000) Brooklyn, New York 11201

Patrick Garcia, Esq.,

Law Guardian for Kyanna T.

26 Court St. (Suite # 2606)

New York, New York 10004

Joan James, Esq.,

Law Guardian for Jamella R. and Ken T.

26 Court St. (Suite # 1710)

Brooklyn, New York 11242

Emily M. Olshansky, J.

June R. (hereinafter "respondent mother") is the mother of the four subject children, Kyanna T., Ken T. (twins born on August 30, 1992), Jamella R. (date of birth August 5, 1997) and Isaiah R. (date of birth October 4, 2009). Winston R. (hereinafter "respondent father") is the father of Jamella R. and Isaiah R. and a person legally responsible for Kyanna and Ken. Kyanna and Ken's father, Paul T., resides in Grenada where the children resided with a maternal aunt and visited with their father until the summer of 2005. During the years that the twins resided in Grenada, they had telephone contact with respondent mother, however, they rarely saw her. According to Kyanna, she only saw her mother once before coming to New York. The twins continue to have telephone contact with their father.

On January 4, 2007, New York City Children's Services (hereinafter, "NYCCS") filed abuse and neglect petitions against respondent mother and respondent father in Kings County Family Court. The petitions alleged that respondent father committed a sex offense against Kyanna. Specifically, it was alleged that respondent father entered the bedroom of Kyanna and Jamella on one occasion in the nude, got into bed with Kyanna, fondled and sucked on her breasts and attempted, on three separate occasions, to penetrate her vagina with his penis. It is further alleged that, as a result, respondent father was arrested. The above incidents were alleged to be in violation of article 130 of Penal Law, including but not limited to §§ 130.20 (sexual misconduct),[FN1] 130.65 (sexual abuse in the second degree),[FN2] and 260.10 (endangering the welfare of a minor).[FN3] [*2]

The petitions further alleged that respondent mother knew or should have known of the sex abuse being perpetrated against Kyanna and failed to take adequate steps to protect her or the other children and allowed the abuse to continue. The petitions alleged that in the summer 2006, Jamella told her mother about the sex abuse being perpetuated by respondent father against Kyanna and respondent mother ignored her, did not believe her and told her, "Shhh ... don't worry about it." The petitions also alleged that respondent mother told the NYCCS caseworker that she did not believe that Kyanna was abused by respondent father. Finally, the petitions alleged that Jamella and Ken are derivatively abused and/or neglected children by virtue of the abuse by respondent father of Kyanna. Specifically, the petitions alleged that his abuse of Kyanna was indicative of a fundamental flaw in his understanding and impaired insight into the appropriate role of a parent.[FN4]

On the day the petitions were filed, the children were paroled to respondent mother under NYCCS supervision on the condition that she enforce the temporary order of protection against respondent father. That order excluded him from the home, directed that he stay away from Kyanna and that he not commit any family offenses against her. The Court ordered that respondent father have visitation with his daughter, Jamella, and his stepson, Ken, supervised by respondent mother.

On February 28, 2007, at respondent mother's request, Kyanna was removed from the home to enable respondent father to return. She was remanded to NYCCS and restrictively placed in kinship foster care with her maternal aunt. The temporary order of protection was modified to enable respondent father to return to the home. Respondent mother was granted liberal unsupervised visitation with Kyanna.

On May 5, 2007, NYCCS moved by order to show cause, for an order permitting Kyanna to testify in camera. NYCCS argued that in order to safeguard Kyanna's physical, mental and emotional well-being, the Court should exclude respondents from the courtroom during Kyanna's testimony. In support of the motion, NYCCS submitted a letter from George H. Kowallis, M.D., dated July 11, 2007. In his letter, Dr. Kowallis reported that he conducted an evaluation of Kyanna on April 23, 2007. He stated that, in his opinion, the presence of the mother or the stepfather in the courtroom while the child testified would not be in her best interests. He stated that his interview and psychological testing of Kyanna suggested that there was "post-traumatic stress disorder developing with the patient also appearing depressed. Also, she is of borderline intelligence [which] present[ed] additional concerns about her coping abilities." Dr. Kowallis concluded that "when this patient testifies in court her biological mother and stepfather should not be present. Otherwise, she [*3]will be emotionally harmed by the experience."

Respondents opposed the motion contending that NYCCS failed to assert a sufficient basis for excluding them when Kyanna testified. Respondents noted that Kyanna was then 15 years old. They also asserted that the doctor's letter failed to establish that the child would suffer "emotional trauma" if required to testify in open court.

In considering the motion, the Court attempted to balance the right of the respondents to due process against the child's need for protection. In addition, the Court considered its responsibility to establish a procedure that would maximize the likelihood that Kyanna would give a full, honest and credible account of what, if anything, occurred between her and respondent father. Toward that end, by order and decision dated October 16, 2007, the Court denied the motion to exclude the respondents and ordered a hearing to permit NYCCS the opportunity to prove its assertions that requiring the child to testify in the presence of respondents would cause her emotional harm and trauma. The Court granted NYCCS leave to renew the motion to exclude at the conclusion of the hearing.

On November 27, 2007, the Court conducted the hearing. NYCCS called one witness George H. Kowallis, M.D. Dr. Kowallis was qualified as an expert in child and adolescent psychiatry. Dr. Kowallis testified about his evaluation of Kyanna, the written evaluations he had reviewed and his interview with Kyanna's kinship foster mother. He described Kyanna as a fragile, depressed 15 year old, who would have been significantly traumatized by testifying in the presence of the respondents. He testified that she was not eating or sleeping well. He stated that she was mildly mentally retarded with an I.Q. of 70. He indicated that Kyanna thought about killing herself and he testified that the psychological evaluation confirmed this. In his opinion, Kyanna was at fairly significant risk. He also stated that Kyanna felt abandoned by her mother for "choosing respondent father over her."

At the conclusion of the hearing, the Court found that Kyanna would likely suffer emotional harm or trauma if required to testify in open court. Accordingly, the motion was granted to the extent that respondents were to be excluded from the courtroom during Kyanna's testimony and permitted to observe the proceeding from a different courtroom by two-way closed circuit television. The Court directed that, after Kyanna's direct testimony was completed, respondents would be granted ample opportunity to discuss her testimony with their attorneys prior to their cross-examination.

The Fact-Finding Hearing

The fact-finding hearing commenced on March 26, 2008 and continued over the course of approximately two years on numerous court dates. During the hearing, NYCCS called caseworkers Presita Samuels and Latoya Griffin, the subject child, Kyanna, Dr. Leonard T. Gries, Ph.D., and respondent mother. Respondent father testified on his own behalf. He also called the attorney who notarized Kyanna's signature on two letters allegedly written and signed by her, which recanted the allegations of sexual abuse.[FN5]

[*4]The Caseworkers' Testimony

The caseworker, Presita Samuels, testified that she interviewed all of the children. On December 12, 2006, she interviewed Jamella and Ken in the home and, on December 13, 2006, she interviewed Jamella at school. She said that Jamella told her that on two separate occasions she saw her father trying to molest Kyanna. Jamella said that the first incident happened in the bathroom. Ms. Samuels testified that Jamella told her that she and Kyanna had been in the bathroom together. She said that when she left the bathroom her father entered. Jamella said that the second incident occurred late one night in the bedroom that she shared with Kyanna. Jamella said that she pretended that she was sleeping and her father got into the bed with Kyanna. She said that he "felt Kyanna up on her breasts." Otherwise, Jamella could not see what happened because the room was dark, but she saw that he was in bed with Kyanna. Jamella reported that afterwards she told Kyanna not to allow respondent father to touch her again. Jamella said that Kyanna did not stop him because he gave her money. Jamella said she saw Kyanna with money after the incidents. Jamella told Ms. Samuels that she told her mother about what happened and her mother told her to be quiet.

Ms. Samuels testified that she also interviewed respondent mother. Ms. Samuels testified that respondent mother said that if the allegations were true, both Kyanna and her husband were "willing participants."

Latoya Griffin was also called to testify. Ms. Griffin was the original caseworker assigned to the case. She was present in the police precinct on November 30, 2006, when respondent father was arrested. At that time, she interviewed Jamella, Kyanna, respondent mother and respondent father.

Ms. Griffin testified that Kyanna reported that respondent father tried to put his penis in her vagina at least twice. She said that he kissed her and tried to lay with her in her bed.

Ms. Griffin testified that Jamella told her that she had observed her father touching Kyanna. Jamella told Ms. Griffin that her father thought she was asleep and that she saw him "feel her up on her breast" and "kissing all over her."

Jamella told Ms. Griffin that she had tried to tell her mother that her father was touching Kyanna. Jamella reported that when she first tried to tell her mother, she did not respond. Jamella reported that she repeated it and that her mother then told her, "Just shhh and don't worry about it." Ms. Griffin testified that respondent mother told her that, in or around July 2006, Jamella did tell her about the sexual abuse but she that she was not sure if Jamella had been telling the truth.

Respondent Mother's Testimony

Respondent mother was called to testify by NYCCS. Respondent mother testified that Jamella told her that she had observed her father abusing Kyanna. She said that she took no steps to protect Kyanna or attempt to find out what happened. She never asked Kyanna. She never asked Jamella to explain the accusations. She never asked Jamella if the abuse continued. She did not confront respondent father. She did not seek an order of protection. She did not immediately take Kyanna to a doctor. She did not take Kyanna or Jamella for counseling. She did not call the police. She did not call NYCCS.

She testified that, on November 30, 2006, she took Kyanna to see Dr. DiPasquale because [*5]she believed that Kyanna might be sexually active.[FN6] She said that she spoke with Dr. DiPasquale after he examined Kyanna. The doctor told respondent mother that Kyanna had reported that she had been molested by respondent father. Respondent mother testified that this was when she first learned of the allegations. She testified that her initial response was to say, "She [has] an English tongue. She [has] a tongue in her mouth to speak up."

Respondent mother testified that Ms. Samuels came to the family's home on November 30, 2006 at 8 PM. Respondent mother testified that when she spoke with the caseworker about the abuse allegations, she did not believe them. She told the caseworker, "You have no proof." She asked Kyanna why she "lie[d] about her stepfather[?]" When respondent mother was asked whether she had interfered with NYCCS' investigation of the allegations by refusing to allow caseworkers to interview the children individually, she repeatedly said, "I don't remember."

Respondent mother testified that Kyanna thereafter told her that she had made up the allegations of sexual abuse for attention. Respondent mother testified that Kyanna told her that she was upset because she wanted to go to Grenada with respondent father and Ken, rather than be left behind with her mother and Jamella. Respondent mother also testified that Jamella said that the allegations were untrue. According to respondent mother, Jamella said that Kyanna only did it for attention.

Respondent mother testified that, on December 1, 2006, she brought the three children to the office of respondent father's criminal defense lawyer. She testified that the lawyer had asked her to bring the children in for an interview. According to respondent mother, the attorney interviewed the three children together while she remained in the room. She testified that, during the interview, Kyanna recanted, admitted that she had lied and apologized. Respondent mother testified that Kyanna said that she did it for attention and because she wanted the whole family to go to Grenada. Respondent mother testified that Kyanna then, on her own, voluntarily wrote two letters of apology (see respondent father's exhibits #

1 and #

2). According to respondent mother, nobody pressured Kyanna to write the letters and nobody told her what to say. Respondent mother testified that Kyanna wrote both letters herself and then signed them both.

The first letter stated as follows:

My name is Kyanna Thomas I am 14 years old and I live in Brooklyn, New York. I want to say that I lied and said some terrible things about my Uncle Winston that are not true. He did not touch me or ever have sex with me. I made up these stories because I was angry with him for being strict with me and I wanted to hurt him. I am so sorry that I have to caused so much pain and trouble for him, my mother and the rest of my family. Nobody is forcing me to write this now. I feel so terrible and sorry and I wish that I could take everything back.

Sincerely, Kyanna Thomas

The second letter stated the following:

I will like to tell you all that I am sorry for doing it. Why I did that is because my mother was [*6]not giving me enefaratention she was giving my brother and my sister the most enfaratention and I was not giving alot of it. he did'nt tuch my briss and my privite path and didn't have sex with me. Why I did all of that because my brother and my stepfarther was going to Grenada and my sister and I was not going with them to grenada. I was a lied and I will like to say that I am sorry for doing it. I didn't mean for it to rech so far. I was going too much of stustud. I didn't mean for all of this to go on and would you all apolligiss.

Kyanna Thomas

Dr. Leonard T. Gries's Testimony

NYCCS also called Dr. Leonard T. Gries, Ph.D., to testify. Dr. Gries was qualified as an expert in child psychology and child sexual abuse and he testified about the evaluation he conducted of Kyanna. He interviewed her on January 29, 2008 and January 31, 2008. He also conducted psychological testing, including the Children's Sentence Completion Test, Human Figure Drawings and Associations, the Thematic Apperception Test and the Trauma Symptoms Checklist for Children. In addition, Kyanna's foster mother completed the Child Behavior Checklist. Dr. Gries's report was admitted into evidence as Petitioner's exhibit #

2.

Dr. Gries diagnosed Kyanna with major depressive disorder in remission, dysthymic disorder and anxiety disorder (Axis I); developmental disorder not otherwise specified (Axis II), and severe psychological stressors (Axis IV). He testified that she had significant anxiety with a history of sleep disturbances. He also said that she suffered from symptoms of Post Traumatic Stress Disorder, including hyper-arousal and intrusive thoughts.

Dr. Gries said that Kyanna suffered from very, very low self-esteem. Her responses on the projective tests indicated that she saw herself as helpless in a malevolent world, being 100% dependent on outside resources and suffering significantly from anxiety and depression. Dr. Gries said that Kyanna presented as having been subject to "traumatic sexualization" which had to do with a "developmentally inappropriate introduction to sex." In his report, Dr. Gries indicated that she was also suffering from a profound sense of deprivation, betrayal and loss.

Dr. Gries emphasized that he did not conduct a "validation." Nevertheless, he testified that Kyanna's allegations were consistent with her psychological presentation. In addition, he testified that, in his view, there was a strong possibility that the abuse happened although he could not say for sure.

In his report, Dr. Gries indicated that the first incident described by Kyanna occurred in her bedroom. She said that she woke up suddenly to "find something touching my titties." She said respondent father was lying beside her in her bed with "his hands around my waist." She said he touched her "on my breast" and "near my privates." She said that respondent father was wearing boxer shorts and a "wife beater" shirt. She said he tried to remove her pajamas but failed to do so when she resisted. She said he exposed his penis to her through his boxer shorts and tried to get her to touch his penis. She said the incident ended when she "punched him in his face" and went into the kitchen to get hot water to splash on him.

Kyanna reported that, after the incident, she knew that it was supposed to remain a secret, [*7]although no threat had been made. According to Dr. Gries, "Kyanna proudly remarked that she was able to exploit the situation by blackmailing respondent father into sending her on a shopping spree in order to buy her silence."

According to Dr. Gries's report, the second incident occurred shortly after the first. It took place in the kitchen. Kyanna reported that she was dressed and ready to go outside when she bent down to pick something up. She said that respondent father placed his hands on her buttocks. She said "he was touching my ass he touched it and rubbed it." Kyanna reported that she complained and said "I'm telling." Kyanna reported that respondent father then admonished her to keep it a secret and gave her additional money. She told Dr. Gries that both incidents took place in the Fall of 2006, while respondent mother was at work.

In his report, Dr. Gries stated that portions of "her account were inconsistent casting some doubt on the exact specifics of what occurred." For example, during the second interview, Kyanna said that, during the first incident, the fondling of her breasts and private area took place before she was completely awake. In addition, during the second interview, she reported that it was during the second incident that respondent father pulled his penis out from his boxer shorts and motioned to her to come closer to him so she could touch his penis. She said that she had then retreated to her room.

Dr. Gries testified that he did not expect to get identical details. He indicated that inconsistencies can be due to many factors. For example, in this case he indicated that they might be due to Kyanna having been asleep during part of the abuse or to a dissociative process. He also said that she may have had a particular motivation for omitting details when speaking in one context and providing them in another. Furthermore, he said that it was possible that she was doubting her own recall or that she had a specific reason for suppressing certain information.

In his report, Dr. Gries stated that Kyanna's disclosure about the incidents of abuse were made in an "emotionally congruent manner." He testified that there was congruity between the child's psychological presentation and her disclosures, as well as her affect as she was presenting the material. He testified that she consistently described fondling and an attempt to have her pajama pants removed. He said she was also consistent in describing the pressure for secrecy and bribery and her fear of the repercussions of speaking out.

Dr. Gries testified that victims of child sexual abuse often suffer from depression. He emphasized, however, that the presence or absence of depression is correlated - - not so much to the abuse itself - - but instead, to the support that the victim receives by others. Dr. Gries testified that, in this case, the sexual abuse contributed to Kyanna's depression. He testified, however, that the mother's failure to support Kyanna was very significant to her and that it was related to her suicidal thoughts. Dr. Gries also testified that Kyanna felt "dejected and let down by her mother's failure to provide adequate support, sought after the incident was disclosed and thereafter." He testified that her feelings of "disappointment, sadness, and anger are superimposed on what may have been comparable feelings towards mother during the first 13 years of Kyanna's life."

Kyanna's Testimony

Kyanna testified during the fact-finding hearing. She said that Dr. DiPasquale was the first person she told about the abuse. She said that she never told anyone before that because she was afraid that they would get mad at her.

Kyanna testified that the first incident of abuse happened in December 2004 at 4:30 AM. She [*8]said that she had been asleep in her bed in the room that she shared with Jamella. She testified that respondent father came into their room. He said he was there to check on her and Jamella. Kyanna testified that when she woke up, respondent father was touching and squeezing her breasts with his hands. She said it lasted "for like two minutes."

Kyanna testified that the second incident occurred while she was in her brother's room watching television or playing video games. She said she fell asleep. She testified that when she woke up she felt her pajama pants "going down and I felt his hand on my private part." She testified that he again said that he was there to check on her. She said that he told her to keep it a secret.

She testified that respondent father twice tried to put his penis in her vagina. She said the first time was when she was lying on the bed and he said, "I want to have sex with you." He said that he was "very horny." She said, "You cannot have sex with me. I'm a little teenager you're married to a woman my mother " He said, "Well, she is not here right now. " She testified that she had fallen asleep and "felt something coming towards my private parts and I jumped up and he said, Are you ready?'" Kyanna said, "So, I'm like ready for what?" He said, "Are you ready to have sex?" Kyanna said, "No." After that, she reported that she ran to her room.

On cross-examination, Kyanna was confronted with a number of inconsistencies in her testimony. For example, on direct, she had testified that the first incident occurred in December 2004. On cross - examination, she testified that the first incident took place, at 4:30 AM on August 28, 2005, two days before her 14th birthday. In addition, on direct she testified that the second incident occurred in her brother's bedroom, although she previously told Dr. Gries that the second incident occurred in the kitchen. Further, on her direct testimony, Kyanna failed to mention that she had punched respondent father and poured hot water on him, things that she had told Dr. Gries. When Kyanna was confronted with the inconsistency about the location of the second incident, she said that the second incident had, in fact, taken place in the kitchen. When Kyanna was asked why she had not previously testified that she had punched respondent father, she said that she was scared that she "would get locked up."

On cross-examination, Kyanna was handed copies of two documents which were admitted into evidence as respondent father's exhibits #

1 and #

2. Kyanna denied writing the letters and she denied that she read the letters; however, she admitted that she had signed them.

Respondent Father's Case

Respondent father testified on his own behalf. He denied all of the allegations and described his relationship with Kyanna prior to her removal in positive terms.

Respondent father also called as his witness the attorney who notarized Kyanna's signature on two letters that she signed while at the office of the father's criminal defense attorney. The attorney testified that he shared office space with respondent father's criminal lawyer and that he was in his office the day the children were brought in by respondent mother to be interviewed. The attorney testified that respondent father's criminal lawyer had told him about the meeting in advance. The attorney testified that the criminal lawyer had told him, "I might need you in a little while. I have someone coming in on a criminal case who is going to be signing a statement and when I'm ready for you to come in, I'll have you come in and notarize the signature." The attorney testified that he watched Kyanna sign the letters and that he notarized her signature. The attorney testified [*9]that everyone present seemed calm and relaxed and that he saw no indication that anyone had forced or pressured Kyanna to sign the letters.

On the day the case was scheduled for closing arguments, NYCCS orally moved to amend the petitions to include allegations of sexual abuse in the third degree[FN7] and forcible touching.[FN8] Counsel for NYCCS asserted that the original petition had provided respondents with adequate notice since it alleged violations of "article 130 of the Penal Law including but not limited to §§ 130.20 (sexual misconduct) [and] 130.65 (sexual abuse in the second degree)." NYCCS asserted that the use of the term "including but not limited to" left open the possibility that other sections of article 130 might be subsequently added. Respondents opposed the motion and requested an adjournment to consider how to respond to it. The Court granted the adjournment and directed that any additional motions be served and filed within 10 days. No additional motions were filed, no additional evidence was submitted and, on the adjourned date, the attorneys concluded their summations.

Summary of the Arguments

NYCCS and the Attorney for Kyanna seek a finding of sexual abuse against respondent father. They emphasize that Jamella and Kyanna gave independent and largely consistent out-of-court statements describing acts of sexual abuse and that those statements were corroborated by Kyanna's testimony, as well as the report and testimony of Dr. Gries. In addition, they assert that the inconsistencies were relatively minor and the circumstances of the recantation highly suspicious. Accordingly, they assert that the inconsistencies should be disregarded and the recantation found to be incredible and insufficient to undermine the credibility of the children's original statements and Kyanna's in court testimony.

NYCCS and the Attorney for Kyanna also seek a finding of abuse against respondent mother for Kyanna. They assert that Jamella told respondent mother about the abuse in July 2006. She initially ignored her daughter and then told her to be quiet. They emphasize that respondent mother took no action whatsoever until four months later when she finally took Kyanna to see a doctor. Respondent mother denied the allegations to Dr. DiPasquale and the caseworker. She accused Kyanna of lying about her stepfather. She then brought Kyanna to the office of respondent father's criminal lawyer to recant. When those efforts were unsuccessful, she placed Kyanna in foster care so respondent father could return to the home.

NYCCS also seeks findings of derivative abuse against both parents for Jamella, Ken and Isaiah. NYCCS asserts that the evidence as to Kyanna demonstrates such an impaired level of parental judgment and fundamental flaw in respondents' understanding of the duties of parenthood as to create a substantial risk of protracted impairment to the three non-target children's physical or emotional health, thus supporting findings of derivative abuse.

Respondents and the Attorney for the Children, Jamella, Ken and Isaiah, disagree, asserting [*10]that the petitions should be dismissed. Respondents emphasize that Kyanna has recanted and made inconsistent statements about the alleged sexual abuse. These inconsistencies have included variations about when the abuse took place, where it took place, what respondent father did and what her response involved. Respondents contend that, as a result, Kyanna's testimony about the sexual abuse should be disregarded since she is not a credible witness. Respondents also urge the Court to disregard Jamella's out-of-court statements. They emphasize that Jamella's observations about the incident that took place in the bathroom were non-specific and did not include a description of any sexual contact. They also note that Jamella's observations about the incident that took place in the girl's bedroom occurred in the dark. They assert that NYCCS never even attempted to determine whether Jamella could possibly have seen what she claimed to have seen. Respondent mother also contends that she acted as a reasonably prudent parent under the circumstances since she took Kyanna to see Dr. DiPasquale when she thought the child was sexually active.

In addition, respondents and the attorney for Jamella, Ken and Isaiah, oppose derivative findings. They emphasize that there was no evidence adduced at the hearing to show that the other children were harmed or placed at risk of harm. The attorney for the three children also asserts that her two older clients oppose a finding of any kind against either parent.

LEGAL ANALYSIS

1.NYCCS's Motion for Leave to Amend is Granted

Family Court Act § 1051 (b) provides the court with broad power to grant leave to amend a petition filed under article 10 of the Family Court Act. The companion to Family Court Act § 1051 (b), CPLR 3025 (c)states, "[t]he court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including the granting of ... continuances."

The question of whether to permit an amendment is left to the trial court's discretion (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:4, at 355; see e.g, In re Thomas JJ., 14 AD3d 953 [3d Dept 2005] [Family Court properly permitted petitioner to conform the pleadings to reflect the proof after the close of the evidence since respondent was given the opportunity to present additional evidence, thus adequately protecting his rights]; Matter of Shawniece E., 110 AD2d 900 [2d Dept1985] [Family Court should have given petitioner the opportunity to introduce evidence concerning new allegations since respondent's rights were protected by Family Court Act § 1051 (b), which permits the amendment of a petition to conform to the proof but requires that respondents be granted a continuance to prepare a defense to the amended allegations]). If the proposed amendment does not set forth new facts, but merely adds an additional theory of recovery, leave should generally be granted(In re Kianna M., 189 Misc 2d 791, 793-794 [Fam Ct, Suffolk County 2001]).

In the instant case, the proposed amendment did not set forth new facts or even a different theory of liability. It merely expanded on the Penal Law sections allegedly violated. Respondents were provided with notice that additional sections of article 130 might be added by the language originally used in the petition, e.g., that respondent father's actions "violated article 130 of the Penal Law, including but not limited to §§ 130.20 [and] 130.65." In any event, after NYCCS moved to amend, respondents were provided with ample opportunity to prepare a defense to the amended [*11]allegations and failed to introduce any additional evidence. Accordingly, the motion to amend is granted.

2.The Allegations against Respondent Father

A.Kyanna's Testimony, if Credited, Supports a Finding of Sexual Abuse based on Forcible Touching and Sexual Abuse in the Second and Third Degrees

Family Court Act § 1012 (e) (iii) defines a sexually abused child as a child less than 18 years of age whose parent or other person legally responsible for his or her care commits, or allows to be committed, an offense against such child defined in article 130 of the Penal Law or allows, permits or encourages such child to engage in any act described in §§ 230.25, 230.30 and 230.32 of the Penal Law (involving prostitution); or commits incest in the first, second or third degree. In cases brought under Family Court Act § 1012 (e) (iii), it is unnecessary to allege or prove harm or threatened harm to the child.

NYCCS alleges that respondent father sexually abused Kyanna by committing acts of forcible touching, sexual misconduct, sexual abuse in the second degree, sexual abuse in the third degree, and endangering the welfare of a child. Forcible touching takes place when a respondent intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of gratifying his sexual desires. Forcible touching includes squeezing, grabbing or pinching. Sexual misconduct takes place when a respondent engages in sexual intercourse or oral or anal sexual conduct with another person without their consent; or engages in sexual conduct with an animal or a dead human body.

Sexual abuse in the second degree takes place when a respondent subjects another person to "sexual contact" when such other person is less than 14 years old. Sexual abuse in the third degree takes place when a respondent subjects another person to "sexual contact" without that person's consent. Since Kyanna was less than 17 years of age at all relevant times, she was incapable of consenting to "sexual contact" of any kind (Penal Law § l30.05[3][a]).

"Sexual contact" is any touching of the "sexual or other intimate parts" of a person not married to the actor (Penal Law §130.00 [3]). "Sexual or other intimate parts" includes a person's breasts (Matter of Winner, 177 Misc 2d 414 [Fam Ct, Bronx County 1998]; People v Watson, 171 AD2d 826 [2d Dept 1991], appeal denied 78 NY2d 1015 [1991] [the touching of a nine-year-old's chest constituted sexual contact within the meaning of the Penal Law]). It also includes a person's buttocks (In re Daniel R., 2010 WL 437162, 2 [2d Dept 2010] [the touching of the buttocks or the leg can constitute sexual abuse]). The mouth, when used for kissing, is also an intimate part of the body (People v Correa, 2002 NY Slip Op 50495 [U] [App Term, 1st Dept]; People v Miller, 19 Misc 3d 457 [Criminal Court, Kings County 2008]; Matter of David V., 226 AD2d 319 [1st Dept 1996] [kissing using the tongue established sexual contact]; Matter of Michael J., 267 AD2d 126 [1st Dept 1999] appeal denied 94 NY2d 762 [2000][forcible kissing constituted sexual abuse]).

Where sexual abuse or forcible touching is alleged, it is necessary to prove that respondent intended to gratify the sexual desire of either party. There is no requirement that actual gratification occur, but only that the touching be for that purpose (People v Teicher, 52 NY2d 638, 646 [1981]). Because the question of gratification is a subjective one, this element may be inferred from respondent's conduct or from the acts themselves (In re Daniel R., 2010 WL 437162, 2 [2d Dept [*12]2010]; see also In re Keisha McL., 261 AD2d 341 [1st Dept 1999] [sexual gratification can be inferred when a parent touches a minor child without an innocent explanation]; Matter of Shannon K., 222 AD2d 905 [3d Dept 1995] [sexual gratification can be inferred from the fondling of the child's vaginal area]; Matter of Patricia J., 206 AD2d 847 [4th Dept 1994], appeal denied 84 NY2d 810 [1994] [sexual gratification can be inferred from respondent's massaging of the child's vagina and buttocks]).

In the instant case, Kyanna's sworn testimony, if credited, would support a finding pursuant to Family Court Act § 1012 (e) (iii), based on forcible touching, sexual abuse in the second degree and sexual abuse in the third degree. Kyanna described acts constituting "sexual contact." She testified that respondent father intentionally touched and squeezed her breasts and buttocks and repeatedly kissed her. This evidence, if credited, would support an inference that respondent father's actions were for purposes of sexual gratification. That element can be inferred from the acts themselves and the fact that respondent father never provided an innocent explanation (In re Keisha McL., 261 AD2d 341). If the acts of abuse took place prior to August 30, 2006, Kyanna's 14th birthday, her testimony would support a finding based on forcible touching and sexual abuse in the second degree. If the acts of abuse took place after Kyanna's 14th birthday, her testimony would support a finding based on forcible touching and sexual abuse in the third degree.

After carefully evaluating the credibility of the various witnesses and considering the documentary evidence introduced, as well as the relevant case and statutory law, the Court finds that Kyanna's testimony was sufficiently credible and amply corroborated to support a finding of sexual abuse against respondent father. The Court rejects respondents' assertion that her testimony is unworthy of belief. The Court has considered the inconsistencies in her testimony as well as her attempt to recant and having had the opportunity to observe her demeanor as she testified under oath, found her to be largely credible.

B.Kyanna's Testimony is Credible Despite the Inconsistencies and Recantation Since it is Amply Corroborated by the Statements of Jamella and the Testimony and Report of Dr. Gries

Where allegations of sexual abuse are established by the testimony of a victimized child, contradictions and inconsistencies often occur. This fact must be viewed in the context of the entire record. The court must consider whether other evidence sufficiently corroborates the original allegations. Undue emphasis should not be placed on minor inconsistencies between the child's trial testimony and her prior statements if her testimony is largely consistent and corroborated by other evidence (In re Melissa P., 261 AD2d 141 [1st Dept 1999], appeal dismissed 93 NY2d 1041 [1999]; Matter of Rubina A., 308 AD2d 537 [2d Dept 2003] [the child gave credible testimony regarding the abuse and the contradictions in her testimony were attributable to familial pressure and a reluctance to testify]; In re Brandi U., 47 AD3d 1103 [3d Dept 2008][the child's testimony was properly credited despite minor inconsistencies since it corroborated her unsworn out-of-court statements describing the abuse]; In re Heather S., 19 AD3d 606 [2d Dept 2005] [the child's testimony sufficiently corroborated her out-of-court descriptions of abuse despite peripheral inconsistencies relating to time-frame]; Matter of Melissa M., 136 Misc 2d 773 [Fam Ct, Suffolk County 1987] [inconsistencies in the child's various out-of-court statements were minor and did not undermine her credibility]; In re Ida EE., 31 AD3d 923 [3d Dept 2006] [the child's testimony was sufficient to [*13]sustain the allegations of abuse and neglect despite the inconsistencies, where the court had the opportunity to observe the child as she testified and found her to be credible]).

In addition, where allegations of sexual abuse are established by the testimony of a child, recantation often occurs. A child's recantation does not, however, require the court to accept the later statements as true. Rather, recantation of an earlier statement simply creates a credibility issue for the court to resolve. Where, as here, two children gave independent and largely consistent out-of-court statements describing sexual abuse, which are corroborated by one child's testimony and the testimony of an expert, recantation may be insufficient to undermine the credibility of the children's initial accounts (see Matter of Tristan R., 63 AD3d 1075 [2d Dept 2009]; see also In re Candice D., 2009 WL 3765344, 5 [Fam Ct, Richmond County 2009] [evidence of the child's recantation through letters apologizing did not undermine the initial disclosure where the child's detailed out-of-court statements were corroborated by another child's statements]; In re Shavar B., 7 AD3d 619 [2d Dept 2004] [evidence of the child's recantation did not require vacating the finding of abuse where the original allegations were corroborated by the testimony of a pediatric expert]; Lisa S. v William S., 187 AD2d 435 [2d Dept 1992] [recantation did not undermine the credibility of the child's initial account where it was corroborated by an expert in child sexual abuse and another witness, who testified about the child's consistent out-of-court statements, as well as medical evidence consistent with digital penetration]; In re Allison B., 41 AD3d 842 [2d Dept 2007], appeal denied 9 NY3d 811 [2007] [the evidence supported the determination that respondent sexually abused the child despite her subsequent recantations]).

The reluctance to discount earlier allegations of abuse because of a subsequent recantation applies with particular force where, as here, the child's original out-of-court statements and her testimony were adequately corroborated and her subsequent attempt to recant was motivated by the pressure exerted upon her by her family (In re Department of Social Services ex rel. L.H. v R.R., 2009 WL 1886890 [Fam Ct, Nassau County 2009] [child's original out-of-court statements were adequately corroborated and her attempt to recant was rejected where she was brought to meet with detectives by her mother in order "for Daddy to come home"]; In re Ingrid R., 18 Misc 3d 1129A [Fam Ct, Queens County 2008] [the initial and detailed disclosures of abuse made by both children were credible and corroborated by the forensic evaluator while their subsequent recantations were disregarded since they suffered family pressure to recant and the mother communicated that she was disturbed by the loss of her paramour and ACS's presence in her life]; see also Matter of Rubina A., 308 AD2d 537 [2d Dept 2003] [contradictions in the child's testimony should have been disregarded where they were attributable to familial pressure and the reluctance to testify]).

In the instant case, Kyanna's in-court testimony and out-of-court statements describing acts of sexual abuse that took place late one night in the girls' bedroom were corroborated by other reliable evidence, including the repeated consistent out-of-court statements of Jamella, and the testimony and report of Dr. Gries.[FN9] Jamella told both caseworkers that she saw her father touching [*14]Kyanna. Jamella said that she saw her father in bed with Kyanna and that she watched him "feel her up on her breast." She reported that "he was kissing all over her." Jamella confirmed Kyanna's statements that respondent father attempted to buy her silence. Jamella reported that she saw her sister with money after the incidents. Jamella also reported that she told her mother about the abuse. That statement was corroborated by respondent mother who admitted that, in July 2006, Jamella told her about what she observed.

Dr. Gries testified that Kyanna's allegations were consistent with her psychological presentation. In his opinion, Kyanna had been subject to "traumatic sexualization" resulting from "a developmentally inappropriate introduction to sex." Dr. Gries stated that Kyanna's disclosures about the abuse were made in an "emotionally congruent manner." He testified that there was congruity between the child's psychological presentation and her disclosures, as well as her affect when she was describing what happened.

Dr. Gries testified that Kyanna consistently described fondling by respondent father and attempts to remove her pajamas. According to Dr. Gries, she was also consistent in describing the pressure for secrecy and bribery and her fear of the consequences of speaking out.

Dr. Gries testified that the first incident Kyanna reported took place in the girls' bedroom. Kyanna told him that she woke up suddenly to "find something touching my titties." She said respondent father was lying beside her in her bed with "his hands around my waist." She said he touched her "on my breast" and "near my privates." She said he tried to remove her pajamas but failed to do so when she resisted. She said he exposed his penis to her through his boxer shorts and tried to get her to touch his penis. Dr. Gries recognized that portions of Kyanna's account were inconsistent and concluded that this created "some doubt on the exact specifics of what occurred." Nevertheless, he rejected the suggestion that the inconsistencies were so significant as to cast doubt on whether Kyanna was actually abused. In his opinion, the inconsistencies were relatively minor and not unusual under the circumstances.

Dr. Gries testified that the inconsistencies in Kyanna's statements could have been due to her having been asleep during part of the abuse, her having suppressed certain information or, to a dissociative process. He also testified that Kyanna might have had a specific motive for withholding details in certain contexts and revealing them in others. Kyanna seemed to illustrate this point when she said that the reason she had not revealed the abuse prior to seeing Dr. DiPasquale was because she thought that people would get mad at her. Similarly, when she explained why she had not testified that she had punched her stepfather, she said that she was scared that she "would get locked up."

The Court rejects respondents' assertion that Kyanna's recantation totally undermines her credibility. To the contrary, the Court finds respondent mother's testimony about the circumstances under which recantation was made to be incredible and the recantation itself unworthy of belief. These findings are based on several factors. First, Kyanna's recantation occurred during an interview involving Kyanna, respondent mother, Ken, Jamella and respondent father's criminal lawyer. All of them - - with the exception of Kyanna - - were aligned in interest with respondent father and all of them had a vested interest in Kyanna recanting. [*15]

Second, the Court rejects respondent mother's assertion that, during the interview, Kyanna spontaneously recanted , admitted she had lied and then, on her own, without any assistance, wrote two letters of apology. Even the most cursory review of the two letters suggests that more than one person participated in their creation. The most obvious difference between the letters is the spelling. Although the first letter contains no spelling errors, the second letter contains the words "enefaratention," "apolligiss," "rech," "tuch," briss," "siter," "did'nt," and "stustud." Another significant difference between the letters is the language used to describe the same general idea. The first letter contains the sentence: "He did not touch me or ever have sex with me." The second letter contains the sentence: "he did'nt tuch my briss and my privite path and didn't have sex with me." (See respondent father's exhibit #

1 and #

2, in evidence). Expert testimony is not necessary for this Court to reject the assertion that Kyanna, on her own, without any assistance, spontaneously wrote both of these letters herself.

Third, notwithstanding respondent mother's assertion to the contrary, the evidence suggests that the meeting with respondent father's criminal lawyer was scheduled for the specific purpose of documenting Kyanna's recantation. On December 1, 2006, before the family even arrived, respondent father's criminal lawyer told the other attorney in his office, "I might need you in a little while, I have someone coming up on a criminal case who's gonna be signing a statement and when I'm ready for you to come in, I'll have you come in to notarize the signatures." This statement seems inconsistent with the mother's claim that Kyanna spontaneously recanted after they arrived at the office.

Fourth, Kyanna's recantation occurred in the context of an otherwise uninterrupted series of statements in which she consistently maintained that she had been sexually abused. In fact, the only time she ever said that she was not sexually abused was on December 1, 2006, while she was being interviewed by respondent father's criminal defense attorney in the presence of her mother and her siblings.

Fifth, the reasons offered by Kyanna to explain why she supposedly "lied," are incredible. If Kyanna was, in fact, upset about respondent father and Ken going to Grenada without her or, if she wanted more attention from her mother, she would not have created a story that resulted in her complete separation from the entire family. Moreover, Kyanna's explanation failed to account for why Jamella, whose interests were quite different than her own and who wanted her father to remain in the home, would have corroborated "false" allegations of sexual abuse.

Accordingly, the Court credits Kyanna's testimony about the incident of abuse that took place in the girls' bedroom. That testimony was corroborated by Jamella's statements, Dr. Gries' testimony and report, as well as Kyanna's prior out-of-court statements.

The inconsistencies and recantation were insufficient to support a different result. The Court concurs with Dr. Gries' view that the inconsistencies were relatively minor and not unusual in light of the fact that Kyanna was asleep when the abuse started, that she faced considerable family pressure to recant, that a lengthy period of time had passed between the abuse and her testimony, and that she had limited intellectual abilities.

The record supports the finding that the abuse started prior to Kyanna's 14th birthday. Kyanna's testimony about when the abuse took place is inconsistent. Nevertheless, Jamella informed respondent mother about the abuse in July 2006. In order for that to have happened, the abuse had [*16]to have occurred prior to Kyanna's 14th birthday, since Kyanna was 14 on August 30, 2006.

The allegations of sexual misconduct were not proven since there is no evidence establishing any acts of sexual intercourse, oral sexual conduct, anal sexual conduct or sexual conduct with an animal or a dead human body. Accordingly, the allegations regarding sexual misconduct are dismissed. The allegations regarding endangering the welfare of a child are also dismissed since that is not an enumerated offense under in Article 130 of the Penal Law. Consequently, it does not constitute a violation of Family Court Act §1012 (e) (iii). The Court, therefore, makes a finding of sexual abuse against respondent father for Kyanna, based on forcible touching and sexual abuse in the second degree.

C.Derivative Findings of Neglect and Abuse are Entered against Respondent Father for the Remaining Children

Family Court Act § 1046 (a) (I) provides 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 children of respondent. Even in the absence of direct evidence of abuse or neglect of the other children, a derivative finding is warranted where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care (Matter of the Dutchess County Department of Social Services o/b/o Douglas E., 191 AD2d 694 [2d Dept 1993] [direct evidence is not necessary to sustain a derivative neglect finding as to respondent's son where he sexually abused his 10-year-old daughter]; Matter of Rasheda S., 183 AD2d 770 [2d Dept 1992] [respondent's sexual abuse of his stepdaughter supported a derivative finding of neglect as to his own daughter since the direct abuse demonstrated a fundamental defect in respondent's understanding of the duties of parenthood]; In re Vincent L., 46 AD3d 395 [1st Dept 2007], lv denied 10 NY3d 706 [2008] [respondent's sexual abuse of children under the age of 14 demonstrated such an impaired level of parental judgment asto create a substantial risk of harm to the remaining children in his care]; Matter of Jasmine A., 18 AD3d 546 [2d Dept 2005] [evidence that one child was sexually and physically abused and that her brothers were physically abused, supported a finding of derivative neglect as to the remaining children since respondent's conduct demonstrated a fundamental defect in his understanding of parental duties relating to any child in his care]).

Although the statute requires that evidence as to the abuse of one child be considered on the issue of the abuse or neglect of other children in the home, such evidence is not conclusive and does not establish a prima facie case as to the other children (In re Abigail S., 21 AD3d 380 [2d Dept 2005]; Matter of Rasheda S., 183 AD2d 770 [2d Dept 1992]). The determinative factor remains whether the nature of the underlying abuse or neglect, notably its duration and the circumstances surrounding its commission, evidences such a fundamental flaw in respondent's understanding of the duties of parenthood that it can reasonably be concluded that the condition still exists ( Matter of Dutchess County Dept. of Social Services on Behalf of Brittany K., 242 AD2d 533 [2d Dept 1997]).

Family Court Act § 1046 (a) (I) provides for a finding of derivative abuse and derivative neglect. A finding of derivative neglect is warranted where the evidence as to the directly abused child demonstrates such an impaired level of parental judgment and fundamental flaw in respondent's understanding of the duties of parenthood as to place the non-target children's physical, mental or emotional condition at substantial risk of becoming impaired. Where, however, the evidence as to the directly abused child demonstrates such impaired parental judgment that it creates a substantial [*17]risk of protracted impairment to the non-target children's physical or emotional health, a finding of derivative abuse is warranted.

Where, as here, a respondent commits acts of sexual or physical abuse against one child while another child is present, a finding of derivative abuse may be warranted (see Matter of Amanda LL., 195 AD2d 708, 710 [3d Dept 1993] [the nature of the abuse and that it was perpetrated while another child was in the same room, demonstrated a total lack of understanding of the parental role, which created a substantial risk of physical injury which would likely cause protracted impairment of the non-target child's physical and emotional health, thus supporting a finding of derivative abuse]; In re A.J., 17 Misc 3d 631, 643-644 [Fam Ct, Queens County 2007] [evidence that respondent abused one child while another child was in the room, created a substantial risk of physical injury likely to cause protracted impairment of the non-target child's physical or emotional health and supported a finding of derivative abuse]; In re Ingrid R.,18 Misc d at 1133 [exposing a 10 year old to the sexual abuse of two other children constituted derivative abuse since it evidenced such poor judgment and flawed understanding of respondent's role as a caretaker]).

Applying these criteria to the facts at bar, the Court enters a finding of derivative abuse for Jamella. Respondent father's forcible touching and sexual abuse of then 13-year-old Kyanna, in the presence of then nine-year-old Jamella, showed such poor judgment and a deeply flawed understanding of his role as an adult caretaker as to place Jamella in the immediate zone of danger and at substantial risk of protracted impairment to her physical and emotional health.

A finding of derivative neglect is made against respondent father for Ken and Isaiah since the sexual abuse of Kyanna in the presence of Jamella evidenced such a fundamental defect in his understanding of the duties of parenthood as to create a substantial risk of harm to any child in his care. The fact that Isaiah was not born until October 9, 2009, does not require a different result since the evidence supports the conclusion that the conditions that led to the original filing remain unchanged (Matter of Baby Boy B.,283 AD2d 584 [2d Dept 2001] [a finding of derivative neglect should have been made as to an infant born shortly after the incident which led to the original finding where respondents failed to present any evidence that the condition leading to that finding no longer existed in their home]; In re Amber C., 38 AD3d 538, 539 [2d Dept 2007] [a finding of derivative neglect was warranted as to an infant born less than one year after a finding of neglect where respondents failed to demonstrate that the circumstances leading to the prior finding no longer existed]).

3.The Allegations against Respondent Mother

The Family Court Act allows for a finding of abuse or neglect against a parent who fails to intervene and protect a child from the abuse of another member of the household. The conduct of such a parent may range across a wide spectrum. "At one extreme is the parent who actually instigates the abuse or encourages the abuser; at the other extreme is the parent who has failed to notice non-specific symptoms in the child such as frequent rashes or recurrent urinary tract infections. In between lie countless scenariosa child who tries to confide in the passive parent and is rebuffed, a child who does confide and is disbelievedthrough endless permutations of secrecy and deception" (Matter of Glenn G., 154 Misc 2d 677, 682-683 [Fam Ct, Kings County 1992], affirmed 218 AD2d 656 [2d Dept 1995], lv denied 87 NY2d 803 [1995]).

The statute defines an "abused child" as "a child less than 18 years of age whose parent commits, or allows to be committed ... an offense defined in article 130 of the Penal Law." The [*18]phrase "allows to be committed" covers situations where the parent is not the perpetrator but knows about the abuse and does nothing to stop it (Family Court Act § 1012 [e] [iii]; In re Ivette R., 282 AD2d 751 [2d Dept 2001] [respondent abused her 11-years-old daughter by allowing her to be sexually abused by her boyfriend where the child told respondent that the abuse was taking place, yet she continued to allow him to reside in the home]; Matter of Katrina W., 171 AD2d 250 [2d Dept 1991] [respondent abused her eight-year-old daughter by allowing her to be sexually abused by her older brother where the girl told respondent that her brother touched her inappropriately but respondent did not believe that her daughter needed protection and allowed the brother to return to the home after a brief period of living elsewhere]; Matter of Venus S., 228 AD2d 314 [1st Dept 1996] [respondent abused her nine-year-old son by allowing a friend to return to the home after the child repeatedly informed her that the friend had pulled his pants down]; Matter of Tania J., 147 AD2d 252 [1st Dept 1989] [respondent abused her eight-year-old daughter by allowing her to be sexually abused by her live-in boyfriend where the child contracted gonorrhea, respondent knew that the boyfriend was the only male to have access to the child during the relevant time and the daughter stated that respondent knew of the abuse and did nothing to stop it]).

The statute defines a "neglected child" as a child less than "18 years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of h[er] parent ... to exercise a minimum degree of care in providing ... proper supervision or guardianship ... or by any other acts of a similarly serious nature" (Family Court Act § 1012 [f] [I] [B]). This definition embraces the situation in which a parent reasonably should have known that the child was being abused by someone else, fails to intervene and, as a result, the child is placed at substantial risk of harm (In re Jasmine B., 4 AD3d 353 [2d Dept 2004]; In re Selena J., 35 AD3d 610, 611 [2d Dept 2006]; In re Krystin M.,294 AD2d 577 [2d Dept 2002] [respondent was neglectful of her five-year-old daughter where she allowed her live-in companion to remain in the home and have frequent contact with the child despite her complaints of abuse and as a result the child was placed at substantial risk of harm]; In re Alexis C,. 27 AD3d 646, 648 [2d Dept 2006] [respondent was neglectful of her nine-year-old daughter where she did not believe that the child had been sexually abused by her paramour, took no further action and allowed him to remain in the home]; Matter of Heather WW., 300 AD2d 940 [3d Dept 2002] [respondent neglected her daughter where, after the child told her that her boyfriend walked around the house naked and left the door open while he masturbated in the bedroom, respondent told him to stop but did not ask him to leave, continued to leave the children alone with him and made no inquiry to determine whether the conduct stopped]; Matter of Brittany B., 275 AD2d 986 [4th Dept 2000] [respondent neglected her daughter by refusing to believe her statements about the sexual abuse and then allowing her boyfriend to remain in the home]; Matter of Eric J., Jr., 223 AD2d 412 [1st Dept 1996] [neglect finding entered against respondent where her daughter was sexually abused by an older male sibling since she knew that her daughter had a vaginal discharge when she was eight, that the two children exhibited promiscuous behavior toward one another and, even after she saw actual evidence of sexual activity, she failed to seek assistance for her daughter]).

The statute provides no clear guidance for determining when a finding of abuse - - as opposed to a finding of neglect - - should be made against a passive parent who failed to intervene and protect a child from sexual abuse by another member of the household. The case law, however, provides some guidance. The Appellate Division, Second Department has held that a passive parent "allows [*19][abuse] to be committed" when they fail to intervene on behalf of a child despite "actual knowledge" of the abuse (Matter of Alan G.,185 AD2d 319 [2d Dept 1992], appeal denied 81 NY2d 703 [1993] [a finding of abuse was entered against respondent who had "actual knowledge" that her daughter was being sexually abused where respondent watched and cried while the child's father raped and sodomized her]; Matter of Ivette R., 282 AD2d 751 [2d Dept 2001] [a finding of abuse was entered against respondent who had "actual knowledge" that her 11-year-old daughter was being sexually abused by respondent's boyfriend where the child told respondent that the abuse was taking place, yet respondent continued to allow the boyfriend to reside in the home]; see also, Matter of Glenn G., 154 Misc 2d at 683 [the evidence was sufficient to support an abuse finding against respondent where she had "actual knowledge" that her two children were being sexually abused by her husband and failed to intervene; nevertheless, a finding of neglect was made based on the determination that respondent was unable to intervene as a result of battered women's syndrome]; Matter of Tania J., 147 AD2d 252, 259 [1st Dept 1989] [a finding of abuse was entered against respondent who had "actual knowledge" that her daughter was being sexually abused where the child tested positive for gonorrhea and respondent's paramour was the only male to have access to the child during the relevant time]).

Where, however, the passive parent reasonably should have known that abuse was occurring, but did not have "actual knowledge," a finding of neglect is appropriate (In Matter of Jose Y., 177 AD2d 580 [2d Dept 1991] [although the record did not support a finding of "actual knowledge" that would constitute abuse, neglect was established by the mother's failure to recognize behavioral changes in her five-year-old child even though the signs had been described to her by a teacher and social worker and a reasonably prudent parent would have observed these signs and taken protective action]; Matter of Anna Marie A. v Elena A., 194 AD2d 608, 609 [2d Dept 1993] [the evidence did not support a finding that respondent had "actual knowledge;" however, since she should have known that the children were in imminent danger and a reasonably prudent parent would have observed the signs of sexual abuse and taken action to protect the children, the mother neglected the children]; In re Alexis C., 27 AD3d 646 [2d Dept 2006] [respondent neglected her nine-year-old daughter where the child told her about an incident of sexual abuse involving her fiancée but respondent did not believe the child, allowed her fiancée to continue residing in the home and took no other action]; In re Heather S.,19 AD3d 606, 607 [2d Dept 2005] [respondent neglected her child by permitting her boyfriend to continue to reside in the home after she was informed of the abuse]; see also Matter of Tantalyn TT., 115 AD2d 799, 800 [3d Dept 1985] [the children were neglected by respondent who did not have "actual knowledge" of the abuse, since a determination of neglect is based on a failure to exercise a minimum degree of care necessary to protect a child from impairment of physical and mental well-being]).

Application of these standards to the facts at bar, leads this Court to enter a finding of neglect against respondent mother. Although respondent mother should have known that Kyanna was being abused, the evidence falls short of establishing that she had actual knowledge.

In July 2006, Jamella told her mother about the abuse she had witnessed. Respondent mother ignored her and then told her to be quiet. Respondent mother, thereafter, took no action to protect Kyanna or investigate whether the allegations were true. She never asked Jamella to explain the accusations in greater detail. She never asked Kyanna whether anything had happened. She did not confront respondent father. She did not ask him to move out. She did not call the police. She did [*20]not call NYCCS. During the months that followed Jamella's disclosure, respondent took no action. She never asked Jamella whether the touching continued. She never asked Kyanna what happened.

At the end of November 2006, respondent mother finally took Kyanna to see Dr. DiPasquale because she thought Kyanna might be sexually active. When the doctor told respondent about the allegations, she denied them. She suggested that the abuse never happened because Kyanna never told her about it and she had "a tongue in her mouth to speak up."

Thereafter, when the caseworker told respondent mother about the allegations, she denied them, asserting that the caseworker had "no proof." Respondent mother then accused Kyanna of lying about her stepfather. The mother said that if the abuse happened, Kyanna was a "willing participant." The following day, respondent brought Kyanna to meet with respondent father's criminal defense attorney in order to document her recantation. Thereafter, without attempting to find out whether respondent father had sexually abused her daughter, she chose to have her daughter placed in foster care, so that he could return to the home.

As a result of respondent mother's actions, Kyanna's physical, mental or emotional condition was impaired or placed at substantial risk of becoming impaired. Dr. Gries testified that respondent mother's failure to support Kyanna had serious consequences for her. He diagnosed Kyanna with major depressive disorder in remission, dysthymic disorder, anxiety disorder, and developmental disorder with severe psychological stressors. He testified that she had significant anxiety with a history of sleep disturbances and symptoms of Post-Traumatic Stress Disorder, including hyper-arousal and intrusive thoughts. He indicated that she was suffering from a profound sense of deprivation, betrayal and loss and that she had very, very low self-esteem. She saw herself as completely dependent on outside resources and helpless in a malevolent world.

Dr. Gries testified that Kyanna felt "dejected and let down by her mother's failure to provide adequate support, sought after the incident was disclosed." According to Dr. Gries, victims of child sexual abuse often suffer from depression. He emphasized, however, that the presence of depression is correlated most directly to the support that the victim receives from others. He testified that Kyanna's depression was partially attributable to the sexual abuse. He emphasized, however, that another contributing factor was respondent mother's failure to support her. He testified that this was a very significant issue for Kyanna and a factor contributing to her thoughts of suicide.

Although the record does not support a finding of "actual knowledge" that would constitute abuse, it does establish that respondent mother's behavior represented a substantial deviation from what a reasonable and prudent parent would have done under the circumstances. Refusing to believe - - or at least question and investigate - - reports of child sexual abuse and, instead, calling the child a liar, stating that if she had been sexually abused, she was a willing participant, taking her to see the alleged abuser's criminal defense attorney for her to recant and, finally, excluding her from the home so the alleged abuser could return, is not reasonable under any standard. Accordingly, the Court enters a finding of neglect as to Kyanna against respondent mother.

Finally, the Court finds that respondent mother's actions evidence a fundamental defect in her understanding of the duties of parenthood sufficient to support the conclusion that any other child in her care would be at substantial risk of impairment. Accordingly, a finding of derivative neglect is entered against respondent mother for Ken, Jamella and Isaiah.

For each of the forgoing reasons, it is [*21]

ORDERED, that the petition is amended to include the allegations that respondent father committed acts of forcible touching and sexual abuse in the third degree; and it is further

ORDERED, that a finding of sexual abuse is entered against respondent father as to the subject child, Kyanna; and it is further

ORDERED, that a finding of derivative abuse is entered against respondent father with respect to Jamella; and it is further

ORDERED, that a finding of derivative neglect is entered against respondent father with respect to Ken and Isaiah; and it is further

ORDERED, that a finding of neglect is entered against respondent mother for her failure to take appropriate steps to protect her daughter from future acts of sexual abuse; and it is further

ORDERED, that a finding of derivative neglect is entered against respondent mother as to Jamella, Ken and Isaiah; and it is further

ORDERED, that a dispositional hearing shall be conducted before the Court on June 4, 2010 at 12:00 PM.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

DATED:March 19, 2010E N T E R:

____________________________

EMILY M. OLSHANSKY, J.F.C.

Footnotes

Footnote 1: Penal Law § 130.20 - A person is guilty of sexual misconduct when: 1) He or she engages in sexual intercourse with another person without such person's consent; or 2) He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent; or 3) He or she engages in sexual conduct with an animal or a dead human body.

Footnote 2: Penal Law § 130.65 - A person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is:

1. Incapable of consent by reason of some factor other than being less than 17 years old;

2. Less than 14 years old.

Footnote 3: Penal Law § 260.10 - A person is guilty of endangering the welfare of a child when:

1. He knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health; or

2. Being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an "abused child," a "neglected child," a "juvenile delinquent" or a "person in need of supervision," as those terms are defined in articles ten, three and seven of the family court act.

Footnote 4: On November 10, 2009, NYCCS filed another derivative petition against respondent mother and respondent father concerning Isaiah R., born on October 4, 2009 (NA-30880/09).

Footnote 5: The exhibits introduced into evidence included the following: petitioner's #

1 in evidence - the Oral Report Transmission (ORT) dated November 30, 2006; petitioner's #

2 in evidence - the report of Dr. Leonard T. Gries, Ph.D.; respondent father's #

1 in evidence - a letter purportedly written and signed by Kyanna on December 1, 2006 and respondent father's #

2 in evidence - a second letter purportedly written and signed by Kyanna on December 1, 2006.

Footnote 6: The basis for this belief was never made clear. Respondent mother simply referred to a discussion she had with school officials in the beginning of that school year.

Footnote 7: Penal Law § 130.55 - A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent.

Footnote 8: Penal Law § 130.52 - A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire. For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.

Footnote 9: Although corroboration is not generally required where a child testifies under oath, it may be considered necessary where, as here, the child's statements involve inconsistencies and an attempt to recant. Where corroboration has been considered, any admissible evidence that tends to confirm the original statements is considered sufficient (see Matter of Margaret W., 83 AD2d 557 [2d Dept 1981], appeal denied 54 NY2d 690 [1981]). The Family Court has considerable discretion to decide whether the child's statements describing abuse or neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding (see Matter of Candice S., 38 AD3d 786 [2d Dept 2007], appeal denied 9 NY2d 805 [2007]).