Opinion
Docket No. NN-123-22
06-14-2023
In the Matter of Loudemya SJ, Jackson SJ, Children Under Eighteen Years of Age Alleged to be Neglected by Jacqueline SJ, Respondent.
Jason Sender, Esq. Administration for Children's Services Family Court Legal Services Paul Aronson, Esq. Vincent Fang, Esq. Brooklyn Defender Services Family Defense Practice Vincent Phillips, Esq. Legal Aid Society Juvenile Rights Practice
Unpublished Opinion
Jason Sender, Esq. Administration for Children's Services Family Court Legal Services Paul Aronson, Esq.
Vincent Fang, Esq. Brooklyn Defender Services Family Defense Practice Vincent Phillips, Esq. Legal Aid Society Juvenile Rights Practice
Jacqueline B. Deane, J.
Procedural History
This proceeding involves a neglect petition filed on February 15, 2022 against the Respondent father, Mr. SJ, pursuant to Article 10 of the Family Court Act, alleging that he used excessive corporal punishment on the subject child, Jackson, then 5 years old, by hitting him with a belt. Cuts and bruises were allegedly observed on Jackson's body at various times, and a bruise and cut were allegedly observed on his older sister, Loudemya, age 4, as well.
This fact-finding hearing commenced on September 12, 2022, and continued over the following dates: November 30, 2022; January 25, 2023; February 2, 2023; March 16, 2023; and, May 11, 2023, the date on which the fact-finding concluded. Petitioner Administration for Children's Services ("Petitioner" or "ACS") called Caseworker Eubanks and Caseworker Cadet, both of whom testified about statements made by the children regarding the allegations. The Respondent called his wife and the children's stepmother, Ms. Vierg SJ, and he also testified on his own behalf. The Attorney for the Children ("AFC") did not introduce any evidence and supported a finding against the father. Counsel then made their summations, and this Court reserved decision.
Evidence
Caseworker Eubanks testified that the subject children came to live with the Respondent father after ACS removed them from their mother's care in August of 2021 and they remained there until February of 2022 when this petition was filed. The father lived in New Jersey with his wife, Ms. SJ, and their five children, and they had no child protective history.
The first neglect petition was filed against the mother, Ms. D, on August 5, 2021, based on mental illness allegations that placed the subject children at risk of harm. The mother completed all her court-ordered services on that case and the children were returned to her care and her finding of neglect was vacated on January 25, 2023.
At the end of a visit between the children and their mother on February 14, 2022, the subject child Jackson reported to Caseworker Cadet that his father had beaten him with a belt. Ms. Eubanks spoke to Loudemya that same day, and she reported that Jackson gets a "whipping", which she explained meant getting hit with a belt, by both the father and stepmother, and the last time she had seen it happen was that same morning. Loudemya did not describe any details of the "beating," such as where on Jackson's body he was hit or how many times, or the frequency at which this occurred. Ms. Eubanks did not examine Jackson's body that day, but she had on numerous prior occasions when the children came to the office for visits with their mother. During the one-month period from January to February 2022, Caseworker Eubanks testified that she would see marks or bruises in various places on Jackson's body and that there was never a point that Jackson did not have marks. The marks would be on his arms, legs, back or face and, on direct examination, were not described in any detail as to shape, color, or stage of healing.
On cross-examination, Ms. Eubanks was asked about a circular scab that she observed on Jackson's back on October 12, 2021. Jackson told the caseworker that he sustained the injury on his bed. Ms. Eubanks directed the stepmother to take the child to Brooklyn Hospital and no further action was needed. When Jackson was questioned about discipline in his father's home, Jackson initially stated that he was not subject to any physical discipline but then, at one point, said his father used a belt, after which Jackson laughed. When the caseworker followed up by asking Jackson if that was the truth, Jackson laughed again, did not answer, and then said he wanted to go back to live with his mother. On November 9th, Jackson reported that he had an injury on his chest, which the caseworker described as a circular mark, and Jackson said he was scratched by a cat. Jackson had some other marks on his leg which he said he got playing with friends, and he also injured his foot in a door. The caseworker took Jackson to Brooklyn Hospital with his parents to be examined. No child protective report was made because of that visit, and the children remained living with their father. On February 10, 2022, Ms. Eubanks had a virtual visit with the children where she observed a scratch on Loudemya's hand, and Loudemya said she got the scratch fighting with her younger sister over a "scrunchie." The caseworker asked Loudemya if there was any physical discipline in the father's home. The child denied any and said she felt safe there. On February 11th, Jackson confirmed that his sister had a fight with a sibling, that there was no physical discipline in the home, and he felt safe there. The children were again brought to Brooklyn Hospital to be examined and again no child protective concerns were raised. Only three days later, the children returned to the field office for a visit with their mother and the report of corporal punishment with a belt was made. On that date, the mother had a visit where she picked the children up from the agency office and had unsupervised time with them outside, after which she returned them to the office. Ms. Eubanks stated that the mother would speak Creole to the children as well as English, but that she did not understand Creole. The children made the statements about the use of the belt after being returned to the agency by their mother. When Ms. Eubanks made the report to the agency, she acknowledged stating that Jackson reported being hit with a belt on either February 9th or 12th and that Loudemya said Jackson was hit on the same morning of the visit, February 14th, which was the day the report was filed. The caseworker did not remember whether the children were taken to the hospital for an examination that day, but they were later removed from their father's care.
Caseworker Cadet testified that he was at the field office on February 14, 2022 when the subject children returned from their unsupervised time with their mother. As the visit was ending and the family was leaving, Mr. Cadet was following Jackson around as he is "very active" and decided to "pull Jackson to the side" away from his mother and sister and "asked him if his father hits him." Jackson responded that his father does hit him and when the caseworker inquired further, Jackson stated that he was hit with a belt and the last time was the day before and he was hit five times. Jackson did not say where on his body he was hit. Mr. Cadet then examined Jackson and did not see any marks or bruises on him. Mr. Cadet did not ask Jackson if he had ever been hit before but did ask if his sister was hit. Jackson said yes, also the day before, but would not elaborate on how she was hit. According to Caseworker Cadet, Jackson continued to be very active during the interview "rolling on the floor, things like that. It would take more than one person to kind of pick him up and get him to behave and other things."
Caseworker Cadet was recalled as the Respondent father's witness to testify to an injury he observed to Jackson's right eyebrow on January 12, 2022. The caseworker observed some swelling and asked Jackson about it. Since the caseworker did not remember the details of the conversation, the Respondent put his case note into evidence as Respondent's Ex. A. In the note, Jackson said he was taking a bath with his brother who commented on his eyebrow being thick, so Jackson cut it.
The Brooklyn Hospital records were admitted into evidence as Petitioner's exhibits 1 and 2. Exhibit 1 documents Loudemya's various visits to the hospital for body checks requested by ACS on January 25, 2022, when an old scar was found on her arm, and on February 11, 2022, for a scratch on her wrist. In both cases, Loudemya was found to be in normal, good physical condition and returned to her father's care without any child protective concerns raised. Exhibit 2 documents Jackson's various visits to the hospital for body checks requested by ACS on November 9, 2021, when he had various scratch marks and a few bruises on his body of different sizes and shapes. All these injuries had healed and were "without abnormal findings," and Jackson denied being hit by anyone at home. Pet's Ex. 2 p. 5. On January 25, 2022, Jackson was again seen at ACS's request for various marks and scabs which again were "without abnormal findings," and Jackson again denied being touched or hurt in any way he did not like at home. Id. at p. 16. Finally, on February 11, 2022, Jackson was seen because Loudemya's scratch was being examined, and Jackson confirmed that she received it fighting with a sibling over hair accessories. Jackson was found in good physical condition, with no marks noted, and he "denied any physical abuse by mother or father." Id. at p. 25, 27. On all occasions, Jackson was returned to his father's care without any child protective concerns raised. There are no medical records in evidence for on or after February 14, 2022.
Mr. SJ testified in an open and honest manner. The Respondent testified that, prior to the subject children coming to stay with him, he lived with his wife and her 5 children ages 13, 10, 7, 3 and an infant, the youngest two of whom they have in common, and this was apparently his first involvement with ACS. The Respondent stated that his wife works at Newark airport from 4am to 12pm noon and he stays home to care for the children. When the subject children were brought to his home by ACS, he found that Jackson was very high energy and would often climb and jump from places in the home, including a bunk bed. Mr. SJ described talking to Jackson about his behavior and the fact that he could get injured, and his son would listen, but once his father left the room, Jackson would resume the behavior. Sometimes, if one of his children did not listen, the father would put the children on their knees for a little while and then try to talk to them again. Mr. SJ emphatically denied ever using corporeal punishment to discipline Jackson or any of the other children in his home. He also stated that Loudemya never really misbehaved. The Respondent father acknowledged seeing occasional marks on Jackson's body when he would scratch himself or get cut while jumping and that he took Jackson to the hospital on several occasions when requested by the agency.
Ms. SJ testified that when Jackson came to live with them, he was "hyper" in that he was "always jumping, always running." To address his behavior, Ms. SJ would call his father to talk to him, take his tablet away, or have him face the wall for ten minutes and then talk to him. She also adamantly denied ever hitting Jackson with a belt or any hard object. Ms. SJ testified that she would see her husband discipline Jackson by putting him on his knees for a couple of minutes and then talking to him. She denied ever seeing Mr. SJ hit Jackson with anything. Ms. SJ remembers the time on October 12, 2021, when Jackson had a scrape on his back which he got from hitting his back on a drawer while getting down from the bunk bed. Ms. SJ said she took Jackson to the hospital as requested by the agency. She also recalled Loudemya having a scratch on her hand from fighting with a younger sibling over a "spongy," and again she took the child to the hospital as requested by the agency. Ms. SJ was cross-examined about her awareness of the father's care of the children while she was at work, and she testified that she would call home frequently during her breaks and other times. Although Petitioner attempted to undermine her credibility based on the timing and frequency of her breaks, the Court did not find this significant at all to her credibility. The Court found Ms. SJ, like her husband, to be open and honest and clear in their efforts to appropriately care for the two subject children and respond to the requests of the agency. Overall, she described the two children, especially Loudemya, as getting along well with all the children in the home other than the usual sibling fights. There was no evidence whatsoever of any antagonism by Ms. SJ towards these two young children despite the children being from her husband's prior relationship.
Legal Analysis
In order to make a neglect finding based on excessive corporal punishment, ACS must prove by a preponderance of the evidence that (1) that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the subject child with proper supervision or guardianship. See Family Ct. Act § § 1012(f)(i)(B), 1046(b)(1); Matter of Afton C., 17 N.Y.3d 1 (2011); In re Kiana M.-M., 123 A.D.3d 720, 721 [2d Dept 2014]. To satisfy this burden, the Petitioner may rely upon prior out-of-court statements of the subject children, provided that they are sufficiently corroborated. See Family Ct Act § 1046 (a)(vi); Matter of Nicole V., 71 N.Y.2d 112, 117-118 [1987]; Matter of Michael B. [Samantha B.], 130 A.D.3d 619 [2d Dept 2015]; Matter of Mateo S. [Robin Marie Y] 118 A.D.3d 89 [2d Dept 2014]. "Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration." Family Ct Act § 1046[a][vi]. This includes the out-of-court statements of siblings, which may properly be used to cross-corroborate one another. See Matter of Ashley G., 163 A.D.3d 963, 964 [2d Dept 2018]. However, in order for a sibling's out-of-court statements to provide sufficient corroboration of the out-of-court statements of another sibling, they must be "independent, consistent, detailed, and explicit." In re Tristan R, 63 A.D.3d 1075, 1077 [2d Dept 2009].
The Court has reviewed the Brooklyn Hospital records of Jackson's marks placed in evidence as Petitioner's Exhibits 1 and 2, and the Court has considered the credibility of the two witnesses called by the Petitioner and weighed that against the evidence presented by the Respondent and his wife. The Court cannot find, by a preponderance of the evidence, that the Respondent father neglected the subject children as defined by Family Court Act ("FCA") § 1012.
The Petitioner's case at trial consisted entirely of out-of-court statements allegedly made by these two young subject children, ages 5 and 4 at the time, to the ACS caseworkers that they were hit with a belt. These statements were not corroborated by any of the past marks actually observed on the children on various occasions over a several month period, as each of the prior marks had different explanations which were accepted by the caseworkers and medical personnel who examined the children. The hospital records in evidence corroborate that those prior marks existed, but do not show any evidence of marks that were, or could be, attributed to children being hit with a belt. Moreover, on the prior occasions, the children repeatedly denied both to hospital personnel and to ACS that they were being hit. Significantly, there are no hospital records from on or about February 14th when the children claimed they were hit with a belt either that day or the day before, when fresh belt marks would be expected to be visible. Additionally, Caseworker Cadet who examined Jackson that same day did not observe any marks whatsoever. This is not consistent with Jackson's statement that he was hit with a belt FIVE times or with his sister's statement that Jackson got a "whipping" with a belt. Also of note is that Jackson said the beating happened earlier that morning while his sister said it happened the day before. While children this young may not be accurate in timing, the difference of an event occurring the SAME day, or a day or two in the past, IS significant.
While statements of two different children can be enough legally to corroborate one another, in this case the statements do not contain sufficient detail and are not consistent enough to form that corroboration. See Matter of Ashley G., 163 A.D.3d at 965 (insufficient corroboration where statements did not contain a detailed description of the alleged excessive corporeal punishment); Matter of Gerald W., Jr., 129 A.D.3d 979, 980 [2d Dept 2015] (dismissal of petition affirmed noting that "The Family Court has considerable discretion to decide whether the child's out-of-court statements have in fact been reliably corroborated).
In addition to the differences in timing of the beating claimed by each child, there is a lack of specificity as to where either child was hit with the belt, how often or on how many occasions. Additionally, the Court must consider the circumstances in which these statements were made. These two young children were removed from their mother who had been their primary and largely sole caretaker for most of their lives. They expressed their desire to return to their mother's home throughout their removal. The first time Jackson made a statement about being hit with a belt, in November of 2021, he did so after first denying any physical punishment, he then laughed when asked if this was the truth, and then went on to say he wanted to return to his mother. In February 2022, Jackson made the statement about having just been hit with a belt that same morning immediately after returning from unsupervised time with his mother, knowing that he would be going back to his father's home. The same is true for Loudemya's statement that day, which was the only time she reported physical punishment of either child. Additionally, the Court has concerns about the way the caseworker chose to interview the child Jackson on February 14th. Jackson was described as running around the field office while being followed by the caseworker, who then decided to start asking him about things in his father's home, while the child was still in motion, and followed up with the leading question, "does your father hit you?" This is not the proper way to conduct an interview of this nature with a young child, and in the Court's view, was not enough of a basis to even bring this petition given the lack of accompanying physical evidence. These are parents who apparently have successfully been raising five children, one of whom is a teenager, without any child protective concerns. They took in the father's two young children when asked by ACS, one of whom everyone acknowledges is extremely active. In a home with 7 young children and an energetic 5-year-old, one can expect a normal share of childhood cuts, scrapes, and bruises. Even Loudemya, who the father and stepmother testified got along with everyone, had a scratch or two from typical sibling fights.
The Court found both the Respondent and his wife to be highly credible witnesses and does not believe they use corporal punishment on any of the children, much less any excessive corporal punishment. The SJs described numerous other forms of discipline they had used over the years with their shared biological children and there is no basis to believe they varied these parenting practices with Jackson and Loudemya.
After having reviewed this evidence as well as having had the unique opportunity to assess the credibility of the Respondent father, the Court holds that the proof is insufficient to make a finding of neglect by a preponderance of the evidence.