Opinion
02-04-2015
In the Matters of NAOMI P., David M., Gustavo M. and Vania M., Children Under the Age of Eighteen Years, Alleged to be Abused and/or Neglected by Trinidad M., Respondent.
Zachary W. Carter, Corporation Counsel, New York City (Alan W. Sputz and Dafna Schindler of counsel) for Administration for Children's Services. Center for Family Representation, Inc., Jamaica (Amanda K. Franzen of counsel) for respondent. Eugene F. Crowe, Glendale, for David, Gustavo and Vania. Tamara A. Steckler, The Legal Aid Society, New York City (Karen Levit of counsel), for Naomi P.
Zachary W. Carter, Corporation Counsel, New York City (Alan W. Sputz and Dafna Schindler of counsel) for Administration for Children's Services.
Center for Family Representation, Inc., Jamaica (Amanda K. Franzen of counsel) for respondent.
Eugene F. Crowe, Glendale, for David, Gustavo and Vania.
Tamara A. Steckler, The Legal Aid Society, New York City (Karen Levit of counsel), for Naomi P.
JOHN M. HUNT, J. Respondent, Trinidad M., is the biological father of the subject children, David, Gustavo and Vania, and the step-father of the subject child, Naomi P. Respondent has admitted to committing one or more sex offenses against Naomi, and the evidence establishes that he has not received professional treatment for pedophilia, "a condition the psychiatric profession itself classifies as a serious mental disorder" ( Kansas v. Hendricks, 521 U.S. 346, 360, 117 S.Ct. 2072, 138 L.Ed.2d 501 [1997] ).
Petitioner, Commissioner of the New York City Administration for Children's Services, has filed child protective petitions on behalf of all four of the children, requesting that this Court adjudicate Naomi to be an abused child and that her three half-siblings be adjudicated as abused or neglected children as defined by Family Court Act § 1012.
These cases were referred to this Court for a fact-finding hearing (see, Fam. Ct. Act § 1044 ) and the hearing was conducted before this Court on January 21 and January 22, 2015. The significant portion of the evidence adduced at the fact-finding hearing is not in dispute. Maria P. is the biological mother of all four of the children who are the subjects of these proceedings: Naomi P. (born December 22, 1997), Gustavo M. (born November 5, 2003), Vania M. (born April 16, 2006) and David M. (born April 20, 2008). Maria P. is presently married to the respondent, Trinidad M., and Mr. M. is the biological father of the children Gustavo, Vania and David. Trinidad M. is the step-father of Naomi P., who was born prior to his marriage to Maria P.
The four children, their mother Maria P., and the respondent, Trinidad M., resided together as a family at all times relevant to the allegations in these child protective proceedings. The parties stipulated that Trinidad M. is a "person legally responsible" for his step-daughter, and based upon that stipulation and the evidence adduced at trial, this Court determined that Trinidad M. was properly named as a respondent with respect to his three biological children ( Fam. Ct. Act § 1012[a] ), as well as with respect to his step-daughter ( Fam. Ct. Act § 1012[g] ; Matter of Yolanda D., 88 N.Y.2d 790, 793–795, 651 N.Y.S.2d 1, 673 N.E.2d 1228 [1996] ; People v. Carroll, 93 N.Y.2d 564, 568, 693 N.Y.S.2d 498, 715 N.E.2d 500 [1999] ; Matter of Dior W., 105 A.D.3d 753, 961 N.Y.S.2d 786 [2013] ; Matter of Emani W., 107 A.D.3d 815, 816, 966 N.Y.S.2d 527 [2013] ; Matter of Jonathan Kevin M., 110 A.D.3d 606, 974 N.Y.S.2d 355 [2013] ; Matter of Jayline R., 110 A.D.3d 419, 420, 973 N.Y.S.2d 21 [2013] ; Matter of Kevin N., 113 A.D.3d 524, 980 N.Y.S.2d 382 [2014] ; Matter of Isaiah L., 119 A.D.3d 797, 798, 990 N.Y.S.2d 82 [2014] ). New York City Police Detective Josephine Lalli of the Queens Special Victims Squad, a 20 year veteran of the police service who has held the rank of Detective for the past 17 years, was the mandated reporter who made the underlying report to the New York State Central Register of Child Abuse and Maltreatment (see, Social Services Law § 413 – § 416 ). Detective Lalli interviewed the subject child, Naomi P., on March 6, 2014 following Naomi's recent disclosure that she had been sexually violated some time ago by her step-father, Trinidad M. Detective Lalli commenced a criminal investigation and she learned that Naomi had disclosed to her then ex-boyfriend that her step-father had sexually abused her in the past and Naomi's allegation was then redisclosed by the former boyfriend and it eventually came to the attention of law enforcement. Detective Lalli testified that she asked Naomi whether the former boyfriend's report of sexual abuse was correct and Naomi began to cry and she informed Lalli that her "father", Trinidad M., had "penis to vagina" sexual contact including intercourse with her when she was 9 years old, and that the sexual contact continued on a once per month basis for a period until Naomi was 10 ½ to 11 years of age.
Naomi, who was then 16 years old, told Lalli that she had previously reported Trinidad's sexual abuse some time ago but she withdrew her allegations because "my mother did not believe me." Lalli learned that Naomi's prior disclosure had been investigated by detectives assigned to the Special Victim's Squad but that no arrest was made and no prosecution commenced due to Naomi's retraction of her allegations against the step-father. Naomi also told Detective Lalli that she had forgiven her "father", as he took care of the family and she was concerned about what would happen to her family if her "father" was arrested.
After speaking with Naomi, the respondent was taken into custody by the detectives and transported to the Queens Special Victims Unit office on Austin Street. As Mr. M. did not speak English, Detective Lalli interviewed respondent with the assistance of Detective Joseph Bey, who speaks English and Spanish. After advising respondent of his Miranda rights and informing him of Naomi's allegations, the respondent provided the detectives with a confession written in the Spanish language, a translation of which is in evidence along with the Spanish language version. In his written statement, which was witnessed by Detective Bey, Mr. M. admitted that:
I, Trinidad, touched Noemi when she was 9 years old. It was only three times, I penetrated only a little because I was afraid. I touched her parts [sic ] that time but nothing more ... I touched and penetrated only once with the head of my penis. I touched her private parts three times with my fingers and I put Noemi's hand on my penis those three [illegible] [sic ] times. It happened when she was 9 years old and nothing else happened except those ones.
Detective Lalli brought the case to the attention of the District Attorney and according to the narrative of the state central register report made by Lalli, the respondent was going to be released from custody because the District Attorney's office had determined that all of the alleged acts had occurred more than five years previously and that prosecution was barred by the applicable statute of limitations (see, Criminal Procedure Law § 30.10 ).
"In New York, although class A felonies and four specified class B felony sex offenses have no limitations period, all other felonies are covered by a five-year statute of limitations. A two-year window applies to misdemeanors and petty offenses must be prosecuted within one year" (People v. Quinto, 18 N.Y.3d 409, 412, 941 N.Y.S.2d 8, 964 N.E.2d 379 [2012] ).
The narrative portion of Detective Lalli's report to the state central register states, in pertinent part, that: "Trinidad ... sexually abused 16 year old Naomi from the time she was 9 until she was 10.5 years old by forcing the child to have sexual intercourse with him [he] would have sexual intercourse with the child at least one time per month. * * * When Naomi was 8 [sic ] years old she disclosed to her mother that [respondent] had touched her vagina.
The entire report transmitted by the state central register to the Administration for Children's Services was admitted into evidence (Fam. Ct. Act § 1046[a][v] ; Matter of Shawn P., 266 A.D.2d 907, 908, 697 N.Y.S.2d 901 [1999], lv. denied 94 N.Y.2d 760, 706 N.Y.S.2d 81, 727 N.E.2d 578 [2000] ; Matter of Michael G., 300 A.D.2d 1144, 1145, 752 N.Y.S.2d 772 [2002] ; Matter of Aaliyah Q., 55 A.D.3d 969, 971, 865 N.Y.S.2d 714 [2008] ; Matter of Lauryn H., 73 A.D.3d 1175, 1177, 900 N.Y.S.2d 764 [2010] ; Matter of Samaj B., 98 A.D.3d 1312, 1313–1314, 951 N.Y.S.2d 308 [2012] ).
Detective Joseph Bey, who assisted Detective Lalli in the investigation conducted in May 2014, also testified at trial. Joseph Bey has been a New York City police detective for 12 years and he is presently a Detective 2nd grade. Although assigned to the Queens Homicide Task Force, he assisted in the investigation of respondent's suspected sexual abuse of Naomi at the request of a detective assigned to the Special Victims Unit at the 112th precinct due to his proficiency in both the English and Spanish languages.
Detective Bey met with the respondent in an office at the Special Victims Unit located within the 112th precinct beginning at 10:50 P.M. on March 6, 2014. Bey identified Trinidad M. as the individual he interviewed on March 6th. According to Bey, he asked respondent whether they could speak, he read the Miranda warnings to respondent in Spanish, and respondent told Bey that he was willing to speak with him about Naomi's allegation that he had "molested" her between 2007 and 2009. Detective Bey recalled that respondent "took a deep breath and said that did occur". Respondent told Bey that he had "molested" Naomi "three times when she was nine years old" and that these incidents occurred when his wife took their three biological children to church.
Respondent informed Bey that he had touched Naomi's "breast and private parts" and that "on one occasion he partially penetrated Naomi's vagina with the tip of his penis, but that he did not fully penetrate her and he ejaculated on a pillow on the bed that he and his wife sleep in." Respondent indicated that he did not attempt to completely penetrate Naomi's vagina because "it seemed painful" for the child, who was then 9 years old. According to Detective Bey, the respondent could not remember the dates when he molested Naomi, although respondent thought that the incidents occurred "sometime in 2008–2009." Respondent was unable to recall exactly where in the home the other two incidents he admitted occurred. Respondent informed Bey that "he asked for forgiveness" and that "Naomi forgave" him.
Mr. M. wrote a statement about what had occurred between himself and his step-daughter at the request of Detective Bey. The statement was written in Spanish and it was professionally translated into English for purposes of this trial. The written statement provided by respondent is set forth above. Detective Bey testified that respondent stated that he had been "drunk" on those Sunday mornings when he molested Naomi, but Bey noted that the respondent was sober and that he appeared normal on March 6th when he interviewed him. Although respondent claimed that he was remorseful after the incident involving his penetration of Naomi's vagina, this did not stop him from perpetrating further sexual contact on other occasions. According to Detective Bey, the respondent told him that he kissed Naomi, touched her thighs, rubbed her vagina, and took her hand and placed it on his penis.
Tiffany Turnbull, the ACS caseworker assigned to conduct a child protective investigation after the agency received the report from the state central register also testified at the hearing. Ms. Turnbull contacted Maria P. on March 10, 2014 and that she proceeded to the family residence on that date. Turnbull met privately with Naomi, who was then 16 years old, and the child told Turnbull that her step-father, Trinidad M., had sexually abused her on a regular basis when she was 8 ½ years old until she was 10 years old. Naomi told the caseworker that Trinidad had forced her to engage in sexual activity with him (i.e., "have sex") once per month and that these incidents occurred when her mother was not at home.
Turnbull asked Naomi about her disclosure of the sexual abuse made around 2006 which had led to an investigation by ACS, including a physical examination of Naomi, and the absence of Mr. M. from the family's home for "about two months." Naomi explained that she had disclosed the sexual abuse "a couple of years ago" but she then denied that it had happened because she was afraid that she would not be believed. Ms. Turnbull noted that Naomi told her that she also retracted her initial accusation of sexual abuse due to her concerns that her father might be taken away from the family. While the current disclosure was initiated by Naomi's former boyfriend, Naomi told Turnbull that she was relieved by the disclosure since her younger sister, Vania, was approaching the age when respondent began to sexually abuse her, and she did not want her sister to be sexually abused. Ms. Turnbull learned from Naomi and Ms. P. that after the initial disclosure of the sexual abuse, the mother took steps to ensure that her husband was never alone with the children.
Ms. Turnbull spoke with Trinidad M. on May 14, 2014. Turnbull noted that she was unable to locate the respondent when she was first assigned to investigate because she learned from the mother that the police had told her husband not to return home. Eventually Ms. Turnbull located respondent and they met at the supermarket where he is employed. Ms. Turnbull spoke with respondent after he had been arrested and then released by the police after no charges had been brought. They communicated with a Spanish interpreter who had accompanied Ms. Turnbull into the field to investigate. Respondent indicated that he was aware of the allegations and why she was investigating. Respondent told the caseworker that when Naomi was "10 years old" "they were "playing a game and his penis accidentally grazed the child's vagina." He then decided to penetrate Naomi vaginally but he was unable to do so "because her vagina was tight." Respondent bizarrely told Ms. Turnbull that he thought that he could "have a relationship" with his 9 or 10 year old step-daughter but he eventually realized he was wrong and he apologized to Naomi. Mr. M. told the caseworker that he never touched Naomi again following her initial disclosure in or about 2006. When asked about his biological daughter Vania, the respondent informed Ms. Turnbull that he "never had feelings towards Vania" or words to that effect.
The Court denied respondent's application for an order precluding Ms. Turnbull's testimony concerning his statements to her based upon an asserted failure of the petitioner to provide disclosure (see, Fam. Ct. Act § 1038[b] ). There was no indication that any delay in disclosure was intentional or motivated by bad faith. Moreover, preclusion of the evidence would negatively affect the rights of the subject children to have issues affecting their safety and best interests fully explored (see, Matter of Landrigen v. Landrigen, 173 A.D.2d 1011, 1012, 569 N.Y.S.2d 843 [1991] ; Matter of Stukes v. Ryan, 289 A.D.2d 623, 624, 733 N.Y.S.2d 541 [2001] ; Matter of Williams v. Williams, 35 A.D.3d 1098, 1100, 827 N.Y.S.2d 328 [2006] ; Matter of Morrissey v. Morrissey, 124 A.D.3d 1367, 1 N.Y.S.3d 678 ).
Ms. Turnbull subsequently supervised visits between the respondent and his three biological children which occurred some time after he had removed himself from the family residence. Ms. Turnbull recalled that the older children, Gustavo and Vania, told her that they didn't actually know why their father was not home with them, although Gustavo, who was then 7 years old, made a reference to "inappropriate behavior", although he made no comments indicating that he had knowledge of the specific behavior he referred to as inappropriate. Ms. Turnbull noted that the youngest child, David, would not speak with her.
According to Ms. Turnbull, Vania was "happy to see her father" at the visitation but Turnbull became unsettled when respondent picked Vania up and placed her on his lap and she told him to take her off of his lap. A second caseworker, Rhina Singleton, who was specifically assigned to assist in supervising visitation, also testified at length concerning the visits and about the one or two instance when the respondent picked Vania up and put her on his lap. This Court draws no inference whatsoever from this particular encounter during supervised visitation as there is nothing unusual about the interaction between the father and Vania. Ms. Turnbull also indicated that when she spoke with Gustavo, who was born in November 2003, and was then in the fifth grade, the child told her that no one had ever touched him inappropriately and as far as he knew, no one else in his family had been touched inappropriately. David, although unwilling to speak with the caseworker, was a healthy 5 year old, and Vania, who was then 7 years old, was healthy and she was able to identify her private parts and reported that she had never been touched inappropriately by anyone. Naomi told Ms. Turnbull that she wanted to receive "counseling" to address her feelings about the sexual abuse and she informed the caseworker that she had no interest in seeing "her father", Mr. M.
II
"A child protective proceeding under article 10 of the Family Court Act is a civil proceeding [brought] for the protection of the child alleged to be abused or neglected" ( People v. Smith, 62 N.Y.2d 306, 309, 476 N.Y.S.2d 797, 465 N.E.2d 336 [1984] ; see also, Matter of Nicole V., 71 N.Y.2d 112, 117, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ; People v. Roselle, 84 N.Y.2d 350, 355, 618 N.Y.S.2d 753, 643 N.E.2d 72 [1994] ; Matter of Brianna L., 103 A.D.3d 181, 186–187, 956 N.Y.S.2d 518 [2012] ; Matter of Maria C., 118 A.D.3d 874, 987 N.Y.S.2d 236 [2014] ).
In order to obtain a finding of child abuse or neglect, the petitioner must establish the allegations in its petition by a preponderance of the evidence ( Fam. Ct. Act § 1046[b][i] ; Nicole V., 71 N.Y.2d at 117, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038 [1987] ; Matter of Jahani K., 111 A.D.3d 832, 833, 976 N.Y.S.2d 100 [2013] ; Matter of Eden S., 117 A.D.3d 1562, 1563, 986 N.Y.S.2d 296 [2014] ; Matter of Ariel R., 118 A.D.3d 1010, 989 N.Y.S.2d 82 [2014] ; Matter of Dylan G., 119 A.D.3d 786, 787, 989 N.Y.S.2d 321 [2014] ; Matter of Jerome S., 120 A.D.3d 1421, 1422, 993 N.Y.S.2d 136 [2014] ; Matter of Joyitha M., 121 A.D.3d 900, 901, 994 N.Y.S.2d 393 [2014] ; Matter of Negus T., 123 A.D.3d 836, 996 N.Y.S.2d 544 [2014] ). This requires that the petitioner present proof that the allegations are "more likely than not to have occurred" ( Matter of Beautisha B., 115 A.D.3d 854, 982 N.Y.S.2d 351 [2014] ; see also, Matter of Jamie TT., 191 A.D.2d 132, 134, 599 N.Y.S.2d 892 [1993] ), or in other words "that the existence of a fact is more probable than the non-existence of that fact" ( United States v. Littrice, 666 F.3d 1053, 1060 [7th Cir.2012] [citation omitted]; see also, United States v. Orillo, 733 F.3d 241, 244 [2013] ). A
"Because the accused parent is not subject to criminal sanctions in a child protective proceeding, the Legislature has provided that the usual rules of criminal evidence do not apply" ( Nicole V., 71 N.Y.2d at 118, 524 N.Y.S.2d 19, 518 N.E.2d 914 ). Instead, the statute contains special evidentiary provisions which apply in fact-finding hearings, including a hearsay exception which allows for the admission of a child's out-of-court statements relating to allegations of abuse or neglect ( Fam. Ct. Act § 1046 [a] [vi] ; Nicole V. 71 N.Y.2d at 123, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Matter of Christina F., 74 N.Y.2d 532, 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294 [1989] ; Matter of Jada K.E., 96 A.D.3d 744, 949 N.Y.S.2d 58 [2012] ; Matter of Anthony S., 98 A.D.3d 519, 520, 949 N.Y.S.2d 194 [2012] ; Matter of Joseph O'D., 102 A.D.3d 874, 958 N.Y.S.2d 731 [2013] ; Matter of Amber C., 104 A.D.3d 845, 961 N.Y.S.2d 492 [2013] ).
This evidentiary provision is of particular significance in a case such as this in which it is alleged that a child has been sexually abused by a family member. "Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there are often no witnesses except the victim" ( Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S.Ct. 989, 94 L.Ed.2d 40 [1987] ; see also, Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993] ). Moreover, as "the child may be reluctant or unable to testify; and erroneous dismissal of the petition can have disastrous consequences" ( Christina F., 74 N.Y.2d at 535, 549 N.Y.S.2d 643, 548 N.E.2d 1294 ; see also, Nicole V., 71 N.Y.2d at 117, 524 N.Y.S.2d 19, 518 N.E.2d 914 ), the statute further provides that "[t]he testimony of the child shall not be necessary to make a finding of abuse or neglect" ( Fam. Ct. Act § 1046[a] [vi] ; Matter of Christopher L., 19 A.D.3d 597, 797 N.Y.S.2d 535 [2005] ; Matter of Imman H., 49 A.D.3d 879, 880, 854 N.Y.S.2d 517 [2008] ; Matter of Sarah W., 122 A.D.3d 931, 932, 997 N.Y.S.2d 164 [2014] ).
While Family Court Act § 1046 allows for the admission of a child's out-of-court statements relating to abuse or neglect, the statute further provides that "if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect" ( Fam. Ct. Act § 1046[a][vi] ). It has been observed that "[c]orroboration is not required because statements of children are generally unreliable but because the out-of-court statements are hearsay and the statute requires some further evidence to establish their reliability" ( Nicole V., at 118, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; see also, Christina F., at 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294 ; Matter of Amber C., at 845, 961 N.Y.S.2d 492 ; Matter of Alexander M., 88 A.D.3d 794, 795, 930 N.Y.S.2d 893 [2011] ; Matter of Jada K.E., 96 A.D.3d 744, 949 N.Y.S.2d 58 [2012] ; Emani W., 107 A.D.3d at 816, 966 N.Y.S.2d 527 ; Matter of Alexis S., 115 A.D.3d 866, 866–867, 982 N.Y.S.2d 366 [2014] ; Matter of Katrina CC., 118 A.D.3d 1064, 1065, 986 N.Y.S.2d 366 [2014] ; Matter of David M., 119 A.D.3d 800, 989 N.Y.S.2d 511 [2014], lv. denied 24 N.Y.3d 989, 995 N.Y.S.2d 706, 20 N.E.3d 651 [2014] ; Matter of Lylly M.G., 121 A.D.3d 1586, 1587, 992 N.Y.S.2d 834 [2014], lv. denied 24 N.Y.3d 913, 2015 N.Y. Slip Op. 60837, 2015 WL 145015 ).
B
In this case, respondent's confession to Detectives Bey and Lalli that he had engaged in sexual conduct with Naomi beginning when she was 9 years old, and his similar statements to ACS caseworker Tiffany Turnbull, were admitted into evidence. An admission of material facts by a party always constitutes competent evidence against him ( People v. Chico, 90 N.Y.2d 585, 589, 665 N.Y.S.2d 5, 687 N.E.2d 1288 [1997] ; People v. Caban, 5 N.Y.3d 143, 151, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Case, 113 A.D.3d 872, 873, 979 N.Y.S.2d 383 [2014], lv. denied 23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] ; People v. Moore, 118 A.D.3d 916, 918, 988 N.Y.S.2d 80 [2014], lv. denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 ). Respondent's statements are sufficient to establish that he sexually abused Naomi when she was between age 9 and age 10 ½ or 11, and his statements further serve as corroboration for the child's out-of-court statements relating to that sexual abuse ( Matter of Dave D., 71 A.D.3d 673, 674, 894 N.Y.S.2d 894 [2010] ; Matter of Joshua J.P., 105 A.D.3d 552, 963 N.Y.S.2d 119 [2013] ; Matter of Genesis F., 121 A.D.3d 526, 994 N.Y.S.2d 341 [2014] ).
Because these are child protective proceedings, the exclusionary rule is deemed to be inapplicable (Matter of Diane P., 110 A.D.2d 354, 356, 494 N.Y.S.2d 881 [1985], app. dismissed 67 N.Y.2d 918, 501 N.Y.S.2d 1027, 492 N.E.2d 1235 [1986] ; Matter of Anne BB., 202 A.D.2d 806, 808, 609 N.Y.S.2d 111 [1994] ). There was no requirement that the petitioner demonstrate that respondent's statements to the police and to the ACS caseworker were voluntarily made as a prerequisite to their admission into evidence (see generally, People v. Thomas, 22 N.Y.3d 629, 641, 985 N.Y.S.2d 193, 8 N.E.3d 308 [2014] ).
There is no doubt that the respondent committed multiple sex offenses against Naomi for his own sexual gratification (see, Matter of Olivia YY., 209 A.D.2d 892, 619 N.Y.S.2d 212 [1994] ; Matter of Shannon K., 222 A.D.2d 905, 906, 635 N.Y.S.2d 751 [1995] ; Matter of Daniel R., 70 A.D.3d 839, 840, 894 N.Y.S.2d 165 [2010] ; Matter of Amparo B.T., 118 A.D.3d 809, 811, 987 N.Y.S.2d 199 [2014] ).
The Court has considered the child's past recantation of her initial allegations against her step-father, the evidence introduced to explain that recantation, and the fact that Naomi made a subsequent disclosure of the sexual abuse which led to the filing of these petitions. Naomi's retraction of her initial allegations presented nothing more than an issue of credibility which this Court has resolved in favor of the petitioner (see, Matter of Kayla N., 41 A.D.3d 920, 922–923, 837 N.Y.S.2d 424 [2007] ; Matter of Caitlyn U., 46 A.D.3d 1144, 1146–1147, 847 N.Y.S.2d 753 [2007] ; Matter of Tristan R., 63 A.D.3d 1075, 1077, 883 N.Y.S.2d 229 [2009] ; Matter of Melody H., 121 A.D.3d 686, 687, 993 N.Y.S.2d 340 [2014] ; Matter of Tiarra D., 124 A.D.3d 973, 1 N.Y.S.3d 492 ).
Accordingly, based upon the evidence adduced by the petitioner and the attorneys for the children in their roles as their advocates ( Jamie TT., 191 A.D.2d at 136–137, 599 N.Y.S.2d 892 ; Matter of Tiajianna M., 55 A.D.3d 1321, 1322, 867 N.Y.S.2d 287 [2008] ), and taking a negative inference against the respondent based upon his failure to testify (Matter of Commissioner of Social Services [Patricia A.] v. Philip De G., 59 N.Y.2d 137, 141, 463 N.Y.S.2d 761, 450 N.E.2d 681 [1983] ; Matter of Nassau County Department of Social Services [Dante M.] v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ; Matter of Clarissa S.P., 91 A.D.3d 785, 786, 939 N.Y.S.2d 466 [2012] ; Matter of Joseph P., 112 A.D.3d 553, 554, 978 N.Y.S.2d 37 [2013] ; Matter of Anthony M.C., 119 A.D.3d 781, 782, 989 N.Y.S.2d 332 [2014] ; Matter of Dean J.K., 121 A.D.3d 896, 897, 994 N.Y.S.2d 391 [2014] ; Matter of Jackson F., 121 A.D.3d 1114, 1115, 995 N.Y.S.2d 190 [2014] ), this Court finds that respondent committed three felony sex offenses against Naomi: Rape in the First Degree ( Penal Law § 130.35[3], [4] ) ; Sexual Abuse in the First Degree ( Penal Law § 130.65 [3 ], [4] ); Course of Sexual Conduct Against a Child in the First Degree ( Penal Law § 130.75[1][a] ).
Respondent argued that the adverse inference, while permissible, could not be used to establish corroboration where it does not otherwise exist (e.g., Matter of Iyonte G., 82 A.D.3d 765, 767, 918 N.Y.S.2d 519 ). In this case, respondent's admissions provide overwhelming corroboration for Naomi's out-of-court statements (Nicole V., 71 N.Y.2d at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Christina F., 74 N.Y.2d at 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294 ; Matter of Alexis S., 115 A.D.3d 866, 867, 982 N.Y.S.2d 366 [2014] ; Matter of Victoria P., 121 A.D.3d 1006, 1007, 994 N.Y.S.2d 409 [2014] ).
For purposes of article 130 of the Penal Law, the term "sexual intercourse" has its "ordinary meaning and occurs upon any penetration, however slight " (Penal Law § 130.00[1] [emphasis added] ).
Pursuant to Penal Law § 130.75, a person is guilty of the class B felony of Course of Sexual Conduct against a Child in the First Degree "when over a period of time not less than three months in duration: (a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse ... with a child less than eleven years old" (Penal Law § 130.75[1][a] ). "Sexual conduct" is defined as "sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact" (Penal Law § 130.00[10] ), and "sexual contact" is defined, insofar as relevant, as "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor" (Penal Law § 130.00[3] ).
C
In making the findings required by Family Court Act § 1051(a) and (e) with respect to the child Naomi P., this Court has rejected respondent's argument that the child protective petitions filed as to all four children should be dismissed due to the passage of time since the last act of sexual abuse was committed.
Child protective proceedings are "specifically designed to protect children from injury, abuse or mistreatment, and to help safeguard their physical, mental and emotional well-being" ( Matter of Sayeh R., 91 N.Y.2d 306, 313, 670 N.Y.S.2d 377, 693 N.E.2d 724 [1997] ; see also, Nicole V., 71 N.Y.2d at 117, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Yolanda D., 88 N.Y.2d at 795, 651 N.Y.S.2d 1, 673 N.E.2d 1228 ), and dismissal of such cases based upon a claim that there has been an inordinate delay in commencing the proceedings is both unauthorized by statute as well as inappropriate ( Matter of Eden S., 117 A.D.3d 1562, 1562–1563, 986 N.Y.S.2d 296 [2014], lv. denied 24 N.Y.3d 906, 2014 WL 5366329 [2014] ; see also, Matter of Kristina R., 21 A.D.3d 560, 563, 800 N.Y.S.2d 454 [2005] ; Matter of Asianna NN., 119 A.D.3d 1243, 1246, 990 N.Y.S.2d 350 [2014] ).
Respondent escaped criminal prosecution for the sex offenses he committed against Naomi for reasons not fully explained to this Court, although apparently related to the statute of limitations applicable to criminal prosecutions or perhaps speedy trial issues. However, the failure to prosecute him criminally does not mandate dismissal of these proceedings ( Matter of Joseph DD., 300 A.D.2d 760, 766, 752 N.Y.S.2d 407 [2002], lv. denied 100 N.Y.2d 504, 762 N.Y.S.2d 874, 793 N.E.2d 411 [2003] ; see also, Matter of Kristina R., 21 A.D.3d 560, 563, 800 N.Y.S.2d 454 [2005] ; Matter of Asianna NN., 119 A.D.3d 1243, 1246, 990 N.Y.S.2d 350 [2014] ), which were commenced within the time period specified by Family Court Act § 1013 ( Fam. Ct. Act § 1013[c] ; Matter of Sheena B., 83 A.D.3d 1056, 1058, 922 N.Y.S.2d 176 [2011] ; Matter of Mylasia P., 104 A.D.3d 856, 961 N.Y.S.2d 531 [2013] ; Matter of Amondie T., 107 A.D.3d 498, 499, 968 N.Y.S.2d 20 [2013] ).
D
Critically, neither the passage of time since the last acknowledged act of sexual abuse nor the failure to prosecute respondent criminally eradicates the harm which respondent's inexcusable actions have caused, nor the risk of harm he poses to all four of the children in the home.
Trinidad M. is an admitted pedophile who has never received medical treatment for that mental disorder, notwithstanding the passage of time he has cited in another context in this case. "[T]he Diagnostic and Statistical Manual of Mental Disorders (DSM), an authoritative text widely used in the mental health profession" ( State of New York v. Shannon S., 20 N.Y.3d 99, 104, 956 N.Y.S.2d 462, 980 N.E.2d 510 [2012] ), classifies pedophilia as a mental disorder that involves sexual activity with prepubescent children (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 302.2 [rev. 4th ed. 2000] ), and pedophilia is recognized to be "a serious mental disorder" ( Hendricks, 521 U.S. at 360, 117 S.Ct. 2072 ; see also, Kansas v. Crane, 534 U.S. 407, 414, 122 S.Ct. 867, 151 L.Ed.2d 856 [2002] [pedophiles are aroused by or act upon sexual urges toward children]; People v. Pierce, 79 A.D.3d 1779, 1779–1780, 914 N.Y.S.2d 547 [2010], lv. denied 16 N.Y.3d 712, 2011 WL 1643556 [2011] ).
Sex offenders as a class are deemed dangerous and their risk of recidivism is extremely high ( McKune v. Lile, 536 U.S. 24, 32–33, 122 S.Ct. 2017, 153 L.Ed.2d 47 [2002] ; Smith v. Doe, 538 U.S. 84, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 [2003] ). A pedophile, such as the respondent, who believed that he "could have a [sexual] relationship" with his 9 year old step-daughter, poses a serious risk to public safety, especially to young children who are vulnerable and unable to protect themselves (see, People v. Seils, 28 A.D.3d 1158, 813 N.Y.S.2d 594 [2006], lv. denied 7 N.Y.3d 709, 822 N.Y.S.2d 483, 855 N.E.2d 799 [2006] ; People v. Collins, 104 A.D.3d 1220, 1221, 960 N.Y.S.2d 579 [2013], lv. denied 21 N.Y.3d 855, 2013 WL 1876251 [2013] ; People v. May, 77 A.D.3d 1388, 909 N.Y.S.2d 272 [2010] ; People v. Bass, 119 A.D.3d 1356, 1357, 989 N.Y.S.2d 556 [2014], lv. denied 24 N.Y.3d 908, 997 N.Y.S.2d 117, 21 N.E.3d 569 [2014] ; Doe v. Sex Offender Registry Board, 447 Mass. 750, 760, 857 N.E.2d 473, 480–481 [Sup.Jud.Ct.2006] ; State v. Purser, 153 Ohio App.3d 144, 152, 791 N.E.2d 1053, 1059 [Ct.App.2003] ; State v. Parker, 329 P.3d 1253, 2014 WL 3843074 at *11 [Kan.App.2014] ).
Notably, under the New York Sex Offender Management and Treatment Act ("SOMTA"), pedophiles may be civilly confined as dangerous sex offenders (State of New York v. Walter W., 94 A.D.3d 1177, 1178, 942 N.Y.S.2d 243 [2012] ; Matter of State of New York v. R.W., 99 A.D.3d 1010, 1011, 953 N.Y.S.2d 139 [2012] ; Matter of State of New York v. Angel P., 116 A.D.3d 1054, 1055–1056, 984 N.Y.S.2d 602 [2014] ).
The evidence of respondent's felonious and protracted sexual abuse of Naomi is admissible on the issue of whether Naomi's three younger siblings are abused or neglected children ( Fam. Ct. Act § 1046[a][i] ; Matter of Amber C., 38 A.D.3d 538, 540, 831 N.Y.S.2d 478 [2007], lv. denied 8 N.Y.3d 816, 839 N.Y.S.2d 454, 870 N.E.2d 695 [2007], lv. dismissed 11 N.Y.3d 728, 864 N.Y.S.2d 380, 894 N.E.2d 643 [2008] ; Matter of Harmony M.E., 121 A.D.3d 677, 679, 994 N.Y.S.2d 138 [2014] ).
The Court has considered the evidence which includes respondent's rape and sexual abuse of Naomi beginning when she was 9 years old, that the sexual abuse occurred in secret on a monthly basis over a period of approximately two years, that the sexual abuse stopped only when Naomi initially disclosed it to others and there was an official investigation. The Court has further considered the fact that respondent has never sought or obtained professional medical treatment for his mental disorder, and that the mother of the children has found it advisable to closely supervised respondent's interaction with all four of the children since the abuse was first disclosed by Naomi some years ago.
Respondent's out-of-court statements relating to his alleged ability to restrain his compulsion to engage in sexual acts with young children was not supported by any reliable evidence, nor was his self-reported ability to refrain from committing acts of sexual abuse subjected to cross-examination at the fact-finding hearing. In any event, respondent's unsworn assertion that he has not committed any further sex offenses within the family since Naomi's initial disclosure does not conclusively establish that he has not committed any sex offenses at all since that time, nor is it dispositive on the issue of whether his untreated mental disorder continues to pose a threat to children who live with him (see, State of New York v. Larry B., 113 A.D.3d 865, 866, 979 N.Y.S.2d 397 [2014], lv. denied 22 N.Y.3d 866, 2014 WL 1361989 [2014] ).
"Even in the absence of direct evidence of actual abuse or neglect of a second child, a derivative finding of neglect should be made 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, thereby making such a child neglected under Family Court Act § 1012(f)(i)(B)" ( Amber C., 38 A.D.3d at 539, 831 N.Y.S.2d 478 [citations omitted]; see also, Matter of Dutchess County Department of Social Services v. Douglas E., 191 A.D.2d 694, 695, 595 N.Y.S.2d 800 [1993] ).
Respondent's depraved sexual abuse of his step-daughter, who considered him to be her father and the lack of treatment for his psychological disorder, clearly demonstrates that respondent's defective understanding of the duties of parenthood and impaired parental judgment creates a substantial risk of harm for the three younger children in the home, and respondent's lack of impulse control presents a danger to any child under his care. Therefore, this Court has little difficulty determining that the children David, Gustavo and Vania M. are neglected children ( Matter of Ian H., 42 A.D.3d 701, 704, 840 N.Y.S.2d 202 [2007], lv. denied 9 N.Y.3d 814, 848 N.Y.S.2d 25, 878 N.E.2d 609 [2007] ; Matter of Brian I., 51 A.D.3d 792, 793, 858 N.Y.S.2d 286 [2008] ; Matter of Lauryn H., 73 A.D.3d 1175, 1177, 900 N.Y.S.2d 764 [2010] ; Matter of Kyanna T., 99 A.D.3d 1011, 1013–1014, 953 N.Y.S.2d 121 [2012], lv. denied 20 N.Y.3d 856, 959 N.Y.S.2d 691, 983 N.E.2d 770 [2013] ; Matter of Leah R., 104 A.D.3d 774, 961 N.Y.S.2d 249 [2013] ; Matter of Angelica M., 107 A.D.3d 803, 804–805, 967 N.Y.S.2d 740 [2013] ; Matter of Michael U., 110 A.D.3d 821, 822, 973 N.Y.S.2d 676 [2013] ; Matter of Jeremiah I.W., 115 A.D.3d 967, 969, 982 N.Y.S.2d 516 [2014] ; Matter of William N., 118 A.D.3d 703, 705–706, 987 N.Y.S.2d 406 [2014] ; Matter of Linda F., 119 A.D.3d 944, 946, 989 N.Y.S.2d 864 [2014] ; Harmony M.E., 121 A.D.3d at 679, 994 N.Y.S.2d 138 ; Matter of Ebony S., 123 A.D.3d 1136, 1136–1137, 997 N.Y.S.2d 640 [2014] ).
Respondent's assertion that dismissal of the proceedings concerning the children David, Gustavo and Vania is mandated by the decision in Matter of Afton C. , 17 N.Y.3d 1, 926 N.Y.S.2d 365, 950 N.E.2d 101 (2011), is misplaced.
Critically, the facts of Afton C. are distinguishable from the facts presented here. Afton C. addressed whether a finding of neglect could be premised on the fact that the parents, one of whom was a convicted and untreated sex offender, continued to reside with the mother and their five children. The Court held that there is no "presumption that an untreated sex offender residing with his or her children is a neglectful parent ... [e]ven where ... the offender's crimes involve victims younger than 18" ( 17 N.Y.3d at 10, 926 N.Y.S.2d 365, 950 N.E.2d 101 ). Afton C. involved sex offenses perpetrated by the father against a stranger, while these cases involve intrafamilial sexual abuse perpetrated by a father with an untreated mental disorder against a young child who resides with him and the child's siblings. Significantly, the investigating caseworker in Afton C. "acknowledged that he had no evidence that the father was sexually inappropriate with any of the subject children" ( Id. at 7, 926 N.Y.S.2d 365, 950 N.E.2d 101 ).
Afton C. clearly does not stand for the proposition that a Court may never give any weight to the fact that children are residing in a home with a convicted sex offender (e.g., Matter of Nikole S. v. Jordan W., 123 A.D.3d 497, 998 N.Y.S.2d 362 [2014] ). Moreover, unlike Afton C., this Court is clearly not relying solely upon respondent's "sex offender status and prior conviction" (see, Matter of Michaellica Lee W., 106 A.D.3d 639, 640, 965 N.Y.S.2d 504 [2013] ), inasmuch as the respondent has never been convicted of a sex offense nor adjudicated to be a "sex offender" under SORA. Rather, in these cases, the Court has assessed whether the respondent poses an imminent risk of harm to the three younger children based upon all of the evidence adduced concerning his commission of sex offenses against Naomi, a subject child who is the step-daughter of the perpetrator, the circumstances under which those acts were committed, and what transpired in the time since the abuse was committed (see, Matter of Lillian SS., 118 A.D.3d 1079, 1080, 987 N.Y.S.2d 482 [2014], lv. dismissed 24 N.Y.3d 936, 993 N.Y.S.2d 547, 17 N.E.3d 1144 [2014] ; Matter of Gianna O., 123 A.D.3d 1168, 1169, 997 N.Y.S.2d 834 [2014] ). Based upon all of the above, this Court concludes that respondent presents an imminent and substantial risk of harm to David, Gustavo and Vania.
As observed by Judge Graffeo, "this is not an area of law amenable to bright-line rules. Rather whether neglect has been established during a proceeding turns on the particular facts and circumstances proven at the hearing" (Afton C., 17 N.Y.3d at 11, 926 N.Y.S.2d 365, 950 N.E.2d 101 [Graffeo, J., concurring] ). Judge Graffeo further noted that the petitioner in that case presented no evidence relating to how the underlying criminal acts were committed, no evidence relating to the hearing conducted under the SORA, and "no evidence, expert or otherwise, explaining how the father's criminal history indicated that he posed a threat of harm to his children" (Id. at 12, 926 N.Y.S.2d 365, 950 N.E.2d 101 ).
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Accordingly, in accordance with Family Court Act § 1051(a), it is hereby
ADJUDGED, that respondent has sexually abused the child Naomi P. within the meaning of Family Court Act § 1012(e)(iii), by virtue of his commission of those sex offenses specified in this decision; and it is further
ADJUDGED, that the children David M., Gustavo M. and Vania M., are found to be neglected children within the meaning of Family Court Act § 1012(f)(i)(B) for the reasons stated herein.
This constitutes the decision, opinion and order of the Court.