Opinion
Docket No: NA19461-3/10
11-13-2012
In the Matter of SABRINA F.G., IMMANUEL F.G., and CARMEN R., Children Under the Age of Eighteen Years Alleged to be Abused/Neglected by MELODY and RUBIN R., Respondents.
At a Term of the Family Court of the State of New York, held in and for the County of Kings, at 330 Jay Street, Brooklyn, New York on the 13th day of November 2012.
PRESENT:
Hon. Alan Beckoff
Judge
DECISION AND ORDER
NOTICE:
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY THE APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.Beckoff, J:
In this child protective proceeding under Article 10 of the Family Court Act, Petitioner New York City Administration for Children's Services ("ACS") alleges that Respondent Ruben R., the father of Carmen, age 13, and the person legally responsible for Immanuel, age 16, and Sabrina, age17, had been sexually abusing Sabrina since she was five years old. ACS further alleges that Melody R., the mother of all three children, knew or should have known of the abuse but failed to protect Sabrina, and that Immanuel and Carmen are derivatively abused and/or neglected.
When this petition was filed on June 29, 2010, Sabrina was already the subject of a PINS proceeding, docket number S9242/10, on which she had a warrant history. That petition was dismissed without prejudice shortly after the petition here was filed. During the pendency of this case, Sabrina was remanded to ACS while Carmen and Immanuel remained released to the temporary custody of the respondents. The Fact-Finding Hearing
The fact-finding hearing commenced on December 8, 2010. By agreement of the lawyers and with the Court's consent, Sabrina was called to testify as a witness for her attorney rather than for ACS. She completed her direct testimony and counsel for ACS commenced his cross-examination. Sabrina testified that Ruben R. was her stepfather and that sometime in the fall of 2009 he entered her room after she came home from school, led her into the living room, sat her down, and placed his hands on her breasts. She also said that going back ten years, to when she was five years old and the family lived in New Jersey, Ruben R. would place his hand under her shirt - on what she described as her "nipple area" - and that starting when she was about ten, he would occasionally rub her vaginal area. Furthermore, Sabrina said, he would ask her to take off her clothes and take her hand to touch his penis. He also tried unsuccessfully to penetrate her. Sabrina also said that she was afraid that she would get in trouble if she told her mother what her stepfather was doing and that her mother would not believe her anyway. She ran away from home three times due to a bad relationship with her mother and Ruben R.'s abuse and told ACS what was going on only after she was out of the home.
On February 16, 2011, the Court held only Sabrina's permanency hearing. On March 18, 2011, when Sabrina's testimony was supposed to resume, it was reported that Ruben R. had suffered a heart attack the day before and was hospitalized. The fact-finding hearing was adjourned to May 17, 2011. On April 20, ACS notified the Court that Sabrina had absconded from her foster home. The Court issued a warrant, which was vacated when Sabrina returned about two weeks later.
On May 17, 2011, Sabrina's testimony continued. Counsel for ACS finished his cross-examination and Ruben R.'s counsel then started his. Sabrina described overhearing a phone conversation between her mother and her aunt about her cousins also being touched by Ruben R. She also recounted some incidents of her stepfather touching her when she was younger and the family lived in New Jersey. On the next scheduled hearing date of May 31, the foster parents did not bring Sabrina to court and the hearing was adjourned again. But first there was another permanency hearing followed by a conference on a motion by Ruben R.'s counsel to dismiss the petition due to the possible inability of the father to attend future court proceedings because of his failing health. Because of the schedules of the Court and the five lawyers on this case, the next fact-finding session could not be calendared until November 30, 2011.
The Court ultimately denied this motion on June 23, 2011.
On November 16, 2011, ACS applied for another warrant for Sabrina, who had again absconded from her foster home. On November 30, Sabrina was still out on the warrant. Her cross-examination by Ruben R.'s counsel was still not finished and Melody R.'s counsel had not questioned her at all. Ruben R.'s counsel asked the Court to strike Sabrina's testimony, but because the attorney for Immanuel and Carmen was engaged in a 1028 hearing, the Court deferred a decision on that application until the next scheduled court session, December 2.
On that day, the Court advised all counsel that it had arrived at an equitable solution to the problem of what to do about the unfinished testimony of the missing child witness: Sabrina's testimony would not be stricken but would instead be treated as if it were an out-of-court statement that must be corroborated pursuant to Family Court Act § 1046 (a)(vi). The Court also said that because Sabrina had a history of absconding from foster care and her third warrant was still outstanding, it would not permit the child's testimony to be re-opened if she were to ever reappear.
The next witness was Tiffane Martin, the ACS caseworker, who testified about her investigation of the case after a Legal Aid Society social worker made a report to the State Central Registry. This report was placed into evidence as Petitioner's Exhibit 1. Martin then recounted her conversation with Sabrina, which essentially reiterated Sabrina's statements. She did not know if Sabrina was ever medically examined for signs of trauma or penetration. Martin also said that she talked to Melody R. and told her to exclude Ruben R. from the home. The mother said that Sabrina was lying and did not exclude the stepfather from the home until after he was arrested. Martin also said that she spoke to Immanuel and Carmen, both of whom said that Sabrina was lying and that Ruben R. never did anything to them. The hearing was continued to March 15, 2012 and the Court directed ACS to have its next witness present. In the meantime, the Court commenced the next permanency hearing on February 7.
On March 15, nearly four months after Sabrina's latest abscondment, ACS reported that the child had returned to foster care, so the Court vacated the latest warrant. ACS counsel then asked for a continuance to bring Sabrina to testify as its witness, arguing that Sabrina's previous testimony was as a witness for her attorney. Counsel also wanted more time to attempt to locate its other witness, an aunt from South Carolina. The Court denied both requests for a continuance, pointing out that it had already ruled regarding Sabrina's testimony and that to allow ACS to start it over would be gaming the system. The Court also ruled that because there had already been extensive delays in the fact-finding hearing, it was not fair to grant a continuance for the speculative appearance of an out-of-town witness. ACS rested and the Court denied both respondents' oral prima facie motions to dismiss the petition.
On April 9, 2012, the permanency hearing that started in February was completed.
On July 30, 2012, Ruben R. and Melody R. both testified. Ruben R. denied all the allegations. Melody R. gave some background about the family's life in New Jersey, saying that Ruben R. worked in a cheese factory and was never home alone with the children. She said that she used to have a good relationship with Sabrina until the child's behavior deteriorated. She also said that Ruben R. had had several heart attacks and had been on medication that limited his ability to perform sexually. Decision
The Court must first determine whether what it is treating as Sabrina's out-of-court statements have been sufficiently corroborated. After full consideration of the record in this case and the pertinent caselaw, the Court reluctantly concludes that they have not.
Family Court Act § 1046(a)(vi) provides:
[P]revious statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subsection, shall be sufficient corroboration.
The Court of Appeals has held that corroboration of a child's out-of-court statements is needed not because the "statements of children are generally unreliable[,] but because the out-of-court statements are hearsay and the statute requires some further evidence to establish reliability." Matter of Christina F., 74 NY2d 532, 536 (1989). Determining "whether a child's out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding of abuse" is a matter left to the "considerable discretion" of the trial court. Matter of Nicole V., 71 NY2d 112, 119 (1987).
In this case, counsel for ACS and the attorney for the child argued that Sabrina's out-of-court statements were sufficiently corroborated by Tiffane Martin's testimony, which was largely a repetition of what Sabrina had said. They both cited Matter of Charlie S., 82 AD3d 1248 (2nd Dept., 2011) in support of this argument. In Charlie S., the Appellate Division, Second Department, affirmed a Family Court determination that a child's out-of court statements about his father inappropriately touching his buttocks were sufficiently corroborated by testimony from the ACS caseworker and the child's high school principal, "both of whom stated that the child related to them that such activity occurred." Id. at 1249. Taken together with the trial court's negative inference drawn from the father's failure to testify, the Appellate Division held that a neglect finding was supported by the record.
This Court is not persuaded by Charlie S., which it considers to be something of an outlier in the body of appellate caselaw on corroboration in F.C.A. Article 10 proceedings. In Matter of Francis Charles W., the companion case to Nicole V., the seminal case on this subject, the Court of Appeals said that a child's out-of-court statements to a deputy sheriff, to his foster father, and then in an affidavit could not cross-corroborate each other: the "repetition of an accusation by a child does not corroborate the child's prior account of it." 71 NY2d at 123. In Christina F., the Court of Appeals again said, "Merely replicating the out-of-court hearsay statements in other out-of-court hearsay settings obviously does nothing to enhance their trustworthiness or eliminate their inherent unreliability." 74 NY2d at 536. However, in Francis Charles W. the Court affirmed that the introduction into evidence of out-of-court statements made by that child's siblings did properly cross-corroborate his statements.
Even the cases cited in the Charlie S. decision do not support the proposition that the testimony of the two witnesses who recounted the child's statements would constitute sufficient corroboration. They all involve corroboration by admissions made by the parents - see Matter of Dave D., 78 AD3d 829 (2nd Dept., 2010); Matter of Erich J., 22 AD3d 849 (2nd Dept., 2005); and Matter of James A., 217 AD2d 961 (2nd Dept., 1995) - and in one of them, admissions by the parents, out-of-court statements by siblings, and photographs. See Matter of Rachel H., 60 AD3d 1060 (2nd Dept., 2009).
The two cases that cite Charlie S. also do not employ its kind of corroboration. In Matter of James S., 88 AD3d 1006 (2nd Dept., 2011), the child's out-of-court statements were corroborated by the caseworker's observation of the child's injury. In Matter of Maria Daniella R., 84 AD3d 1384 (2nd Dept., 2011), there was cross-corroboration by the siblings' out-of-court statements and the mother made admissions to the caseworker.
The Second Department has, in other cases, recognized that repetition is not sufficient corroboration. In Matter of Iyonte G., 82 AD3d 765 (2nd Dept., 2011), decided a few weeks before Charlie S., the Court held that the repetition of the child's out-of court statements was not sufficient corroboration and that while the Family Court properly drew a negative inference from the stepfather's failure to testify, "that inference cannot establish corroboration where it otherwise does not exist." Id. at 767 (citations omitted). More recently, in Matter of Jada K.E., 96 AD3d 744 (2nd Dept., 2012), the Second Department affirmed the Family Court's determination that a child's drawing, made contemporaneously with her statement, was only a repetition of the statement. Furthermore, the out-of-court statement of the sibling of the child in that case did not corroborate her statement because the sibling denied any sexual behavior by the father and said that her sister was lying.
As we have noted, the Court of Appeals has held that a child's out-of-court statement can be cross-corroborated by a sibling's out-of-court statement. See also Matter of Tristan R., 63 AD3d 1075 (2nd Dept., 2009); Matter of Beverly R., 38 AD3d 668 (2nd Dept., 2007). But here, as in Jada K.E., the siblings' out-of-court statements failed to support Sabrina's statements. According to Tiffane Martin, Immanuel and Carmen both said that Sabrina was lying and both denied that Rubin R. did anything improper to them.
Because both respondents here testified, this Court is, of course, not drawing a negative inference against either one of them. But since the Court has determined that Sabrina's out-of-court statements have not been sufficiently corroborated, it does not have to decide the question of whether or not either of them is credible. ACS has not met its burden of establishing abuse or neglect by a preponderance of the evidence, and accordingly, this petition is dismissed.
DATED: BROOKLYN, NEW YORK
NOVEMBER 13, 2012
ENTER:
____________________________
ALAN BECKOFF, JFC