On November 20, 2013 The Administration the Children's Services filed a Family Court Act § 1022 pre-petition application seeking emergency removal of L, C, CH, and Y ^[FN1] from the parents S W and CY R.

The application alleged that the parents had sexually explicit photographs of their children, failed to cooperate with ACS by refusing to attend a forensic interview and refused to speak with the caseworker. The matter was filed in the afternoon and came to intake late in the day. The three oldest children were already staying with their maternal aunt and uncle. Based on the serious allegations the court removed the children and let them stay at their aunt and uncle's home and had the youngest child Y brought to that home as well. The court believed that this removal would less likely traumatize the children. The court also issued stay-away protective order against the parents.

Hearings continued based on Family Court Act § 1027. After ACS rested, Kelly Ballinger, Esq., the attorney for the two oldest children moved to dismiss the proceeding in a prima facie motion.

The motion was granted orally on November 27, 2013. This order complies with Family Court [*2]Act § 1027 (f).

Proceedings

The Family Court Act § 1022 application alleged that the parents had sexually explicit photographs of their children, did not bring them to an appointment at the Children's Advocacy Center for a forensic examination on November 19 and would not speak to the caseworker Marie Henry.

On November 20 the court appointed Denise Costanza, Esq. to represent the mother, and Jeffery Blank, Esq. to represent the father. Stacey Richman, Esq. represented the parents regarding a search warrant executed at their home in April 2013. Kelly Ballinger, Esq. represented the children. Ashley Mullin, Esq. represented ACS.

On November 21, Shahabudden Ally, Esq., substituted for Ms. Costanza. On November 22, when Ms. Henry had almost completed her testimony, Ms. Ballinger asked the court to relieve her from representing the two youngest children due to a possible conflict. Joel Borenstein, Esq., agreed to represent the children.

Though the petitioner rested, the parties agreed that the hearing would continue with the respondent's case but Mr. Borenstein would be permitted to cross examine Ms. Henry and the petitioners case would be reopened for the purposes of redirect examination based on questions asked by Mr. Borenstein.

After ACS rested, the respondent mother, Ms. R began testifying. After Mr. Borenstein's cross-examination and ACS' re-direct, ACS case was complete. Counsel then sought to introduce additional evidence. The request was denied.

Ms. Ballinger then moved to dismiss the petition based on ACS's failure to prove a prima facie case. Because Ms. R started testifying, the court stated it would hold a decision in abeyance until Ms. R completed her testimony. The case was scheduled for November 27 from 9 AM to 10:30 AM.

That morning Ms.Mullin moved to introduce a CD provided by the Kings County District Attorney's Office purporting to have more naked W children photographs and a video. Though the date on the CD was November 15, Ms. Mullen described its contents as newly discovered evidence. Due to the seriousness of sexual abuse allegations, counsel agreed to review the CD with the Court before any party consented or opposed the application.

Ms. Mullin sought to admit the CD to prove the dates and times photographs were taken and to possibly indicate what devices they were taken with. The court refused to accept the CD for that purpose because it believed it to be irrelevant. The issue before the court was whether or not the Ws had photographs that constituted child pornography indicating they sexually abused their children. The times, dates and devices on which the photographs were taken or stored was not relevant to determining imminent risk. After a full review, the parties consented to admit the CD into evidence. ACS objected that the Court did not grant its entire application.

On November 27 the court also directed the parents to undergo an imminent risk assessment at the Court's mental health clinic. Dr. Adam Bloom, the clinic's director, conducted the examinations and reported to the court late that afternoon. Based on the CD, the doctor's report and the case worker's testimony that they found no imminent risk to the children if they were returned to their parents, the Court, read detailed findings into the record and granted the prima facie motion.

Since that evening was the first night of Chanukah and Thanksgiving eve, the Court permitted the parents to pick up their children and refused ACS's request for a stay. [*3]

On November 27, ACS filed the abuse petition against the Ws alleging that they committed acts or conduct described in Penal Code article 263 "including but not limited to" Penal Law § 263.05 [use of the child in a sexual performance], Penal Law§ 263.10 [promoting a sexual performance by a child], and Penal Law 263.11 [possessing an obscene sexual performance by a child].

The hearing

Marie Henry was the only ACS witness.

She testified that Mr. W lost his Blackberry device last April. The person who found it also found photographs of naked children and turned the phone into the police.

On that basis a warrant was issued under Penal Law Article 263, permitting a search of the W residence to take and "forensically examine" computers — including peripheral hardware —, any media storage device, passwords, encryption information, papers, photographs or magazines depicting or containing nude children or children engaged in sexual conduct.

On November 18, 2013, Kings County District Attorney Detective Rada Aliyev called the Office of Children and Family Services. This resulted in an Intake Report (ORT) stating CH was the abused child. The ORT included a statement that the forensic team first located photographs that constituted child abuse in November, 2013. He also indicated that the "team" was looking for more photographs. The report alleged that CH was posed for two photos.

Ms. Henry testified that on November 19, 2013 Kings County District Attorney, Supervising Detective Investigator William Pettite gave her 13 photographs of the W children. According to her, the District Attorney's Office was unable to gain access to the contents of the equipment taken during the warrant between April and November due to the its contents' s encryption.

The court noted with skepticism that in the year 2013, when law enforcement is fighting terrorism, it could possibly take seven months to crack the encryption placed on Mr. W's devices. Furthermore, the warrant required Mr. W give the police encryption information. There was no reason they could not obtain this information through Mr. W.

She also testified that according to the detective the 13 photographs were the only "problematic photographs" out of thousands recovered by the District Attorney's Office. She stated she was told the Blackberry was the sole reason the police sought a warrant.

On November 20, after the court removed the children, it directed Ms. Henry to ensure that the children and the Ws went that evening to the Children's Advocacy Center.

At the center, Irena Kaplan interviewed L and C W . Ms. Henry did not know if Ms. Kaplan had any special qualifications. She viewed the interviews from another room. She stated that CH refused an interview even when her sister C coaxed her to enter the interview room.

Ms. Henry testified that the children told Ms. Kaplan they dressed appropriately. They described how they normally dressed. They knew their body parts and about proper and improper touching. L said she bathed herself and sometimes help bathe the younger children. She told Ms. Kaplan that nobody ever touched her private parts.

Ms. Henry saw the children interact with their mother. She stated that L and C were comfortable with their mother and C sat on her lap.

A physician examined all four children and found no signs of physical or sexual abuse.

Ms. Kaplan neither showed photographs to the children nor discussed them with the children. She deemed them "too traumatic." Somehow this assumed the photographs were abusive, pornographic and would, upset to the children. Had Ms. Kaplan questioned the children their answers may have been informative. [*4]

Ms. Henry related that the Ws did not want to talk to her because they still felt the trauma from the warrant. They felt especially frightened when she appeared on November 19 with a van to take the whole family to the Children's Advocacy Center. They also had an attorney regarding the warrant, Stacey Richman, Esq. Once Ms. Richman permitted them to do so, they spoke with Ms. Henry. Ms. Henry said the children were sleeping when she entered the home; the home had appropriate sleeping arrangements and seemed fine.

During Ms. Henry's testimony 13 photographs of children were admitted into evidence. In all the pictures the children were at least partially undressed.

The first photograph noted in the ORT shows CH sleeping with her legs spread and her vagina visible. Ms. Henry related that Ms. R said she took the photo because she felt it was strange to see CH in this position. She emailed the photo to her sister and husband. The latter responded "gross" and the former said it was "disgusting" and told Ms. R to delete the photo. Ms. R confirmed this during her brief direct testimony.

There are three photographs of CH wearing boots that were too large for her. Other than the boots she is naked. One photo was taken from behind. In the others CH is posing for the camera and smiling. CH's private parts are not in the photo and are not the photo' s focal point. Ms. R said CH put on her sister's boots after she undressed to take a bath.

Another photo shows CH asleep on her stomach with her buttocks visible. It does not appear the child was posed for the picture. Ms. R said she put her to sleep in panties and a nightgown.

Another photo depicts children playing in a bathtub. According to Ms. R these are her children and their cousins playing in the water and sharing a bath.

There are photos of children kissing in the bathtub and one with children lying side-by-side in the tub. Ms. R said they were photos of her twin nieces and she did not take those photos.

One photo had a child from the torso up with cream on the child's hands and face.

Another photo, probably also one noted in the ORT, shows CH in a chair eating and her brother on the floor eating. The photo depicts a side view of CH. She is undressed and you can barely see her face. Her sibling is wearing diapers. According to Ms. R this took place when the family went away on vacation and the children came back from swimming. She removed their bathing suits and CH went into the kitchen and started eating instead of getting dressed. She thought it was cute and took the picture.

Another photo shows a child with underwear pulled down with their buttocks showing. A potty is in the background. Ms. R said she is not sure who took the photograph.

On November 27 the CD was admitted into evidence. It is dated November 15 and it is noted that it's part of an investigation. The CD included the photographs that were placed into evidence and similar photographs. For example, one is a full frontal nude picture of a child covered almost completely in soap bubbles. Her privates are not visible or the photo's focal point. The child and the bubbles are the photo's focal point. The court noticed a housekeeper standing at the bathroom sink, near the child when the photo was taken.

The videos on the CD lend credence to the fact that the photographs were merely a loving and attentive mother, Ms. R, over-photographing her children.

The video shows a birthday party and a possible trip to SeaWorld. Following those two scenes is one where CH is jumping in her bed while wearing her pajamas. Ms. R is trying to get her to stop jumping and to go to sleep. CH keeps on asking to jump one more time. CH then says she needs the bathroom. The camera follows her to the bathroom. Ms. R speaks during the entire clip. In the bathroom, CH struggles to get the potty seat on the toilet. Her mother is [*5]encouraging her in a humorous manner during the video. She proceeded to sit on the toilet and almost immediately asked for a tissue. Her mother tries explaining that she didn't urinate and doesn't need a tissue. CH said she did. Her genitals are not visible nor the focal point. In fact, Ms R urges CH to pull up her top so it doesn't go into the toilet.

The next video matches the bathtub photograph. There are bunch of children in the bathtub talking about what they're doing and Ms. R is talking to them about their playing together. There is nothing pornographic about the video or the photo. These videos indicated to the court that Mr. R uses technology to obsessively record her children's lives and did not realize that not everything needs to be memorialized.

Dr. Adam Bloom director of the Kings County Family Court's mental health clinic saw the parents for an imminent risk evaluation.

According to the doctor Ms. R appeared "real." The doctor said she was asymptomatic. She mentioned that she takes lots of photographs but does not have bad intentions. Though she did admit in retrospect the picture she took of CH's legs spread was probably inappropriate.

The doctor found Mr. W open and forthcoming. Mr. W spoke about his daily life and the removal's impact on his family. Dr. Bloom found no mental illness. He noted that Mr. W said Ms. R tries to be the perfect mother.

He found neither parent exhibited risk factors.

Dr. Bloom spoke with the children's pediatrician Dr. Gottesman. The Ws were the doctors patients for seven years. He told Dr. Bloom that the family was "one of the most normal high functioning families" in his practice and he never saw any signs of abuse when examining the children.

Most importantly, ACS' own caseworker, Ms. Henry, testified that she did not believe that there would be an imminent risk to the children were the court to send them home.

Discussion

In 1925 Justice Cardozo explained the court's role in protecting children. He said the court:

[A] cs as parens patraie is to do what's in the best interests of the child. He is to put himself in the position of a "wise, affectionate and careful parent.^[FN2]

Family Court Act § 1011 states that Article 10's purpose is to:

[E]stablish procedures to help protect children from injury and to helpsafeguard their well-being. It is designed to provide a due process of law for determining when the state may intervene against the wishes of a parent on behalf of a child so that his needs are properly met.

1) whether the focal point of the visual depiction is on the child's genitals orpubic area;

2)whether the setting of the visual depiction is sexually suggestive, i.e., ina place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriateattire,considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or willingness toengage in sexual activity;

6) whether the visual depiction is intended or designed to elicit sexual[*7]response in the viewer.^[FN9]

The court stated that a photograph would be lewd if a child was "dressed in a sexually seductive manner, with her legs open in the foreground" because the combined effect is designed to elicit a sexual response from the viewer even if it's only a pedophile viewer. But it would not be lewd if the child was wearing age-appropriate clothing and sitting in an ordinary manner for her age ^[FN10]. The photographs depicting CH were taken when she was sleeping, was wearing a nightgown though her private parts were exposed, and once again response to the photographs was "gross" and "disgusting." Those are hardly sexual responses by the viewer.

In US v Oakes ^[FN11] the court reviewed a Massachusetts statute then vacated and remanded the case the Massachusetts Supreme Court.

The court noted that the Massachusetts Supreme Court believed the statute before it could possibly criminalize "conduct that virtually every person would regard as lawful. " And it feared the law would make criminals of a parent "who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool."^[FN12] This is as close as any case can get to describing the events in this case as placed on the record.

In Matter of Glenn G.^[FN13] the respondent was charged with physical sexual abuse of his children. He photographed his son — who was between the ages of three and four — laying on his back on a couch with his underwear and jeans pulled to his knees. The child had a conspicuous erection. Judge Sara P. Schechter found that the "pose, camera angle, studied arrangement of the clothing combined to create the unmistakable sexual innuendo."^[FN14] The court found the photograph violated Penal Law § 263.05. None of the photographs presented to this court create an unmistakable sexual innuendo.

And in US v Loy ^[FN15] the court determined how much access a pedophile should have to his own non-victim children. The court held that "parents have a fundamental right to raise the children" unless there is a compelling state interest and absent sufficient evidence to find potential danger there is no compelling constitutional state interest to interfere with one's family.^[FN16]

Based on the evidence and testimony at the FCA §1027 hearing Mr. W and Ms. R and not abuse their children by violating a section of the Penal Code. And the Court re-affirms its oral decision [*8]to return the children.

The Court ruled that the photos of CH were not lewd. Thus, the parents did not violate penal Law § 263.05 by using their child for a sexual performance.

The parents did not violate penal law § 263.10. The photos of CH did not meet the definition of lewd to qualify as obscene under Penal Law § 235. And it was not a sexual performance because the photograph did not meet the lewd definition of Penal Law § 263. They did not promote an obscene sexual performance.

And the parents did not violate Penal Law § 263.11 because there was no obscene sexual performance or obscene performance under the Penal Law.

Ms. R stated to Ms. Henry and in court that in retrospect the pictures of CH were in bad taste. She obviously used poor judgment when she took it. But she takes numerous photos of her children.

Any parent knows that you cannot raise a child without making a mistakes in judgment from time to time. And unless that mistake endangers your child or you violate a statute you have the right to correct your mistake without government interference in your family life. Ms. R learned a difficult lesson.

The Court does not understand the DA's close involvement with this case. The caseworker was told she had all the problematic photos. But then on a DA's office CD the Court is presented with more evidence and videos that, according to Ms Mullin, are part of an ongoing investigation into the respondents.

But if the DA already has thousands of photographs taken from the Ws, the office must know by now if their devices contained actual child pornography. And if the DA assisted ACS in bringing this action based on specific Penal Law statutes why weren't the Ws prosecuted.

If the parents or children had access to child pornography in the home it should have been part of this case to protect the children if necessary.

This constitutes a decision and order of the court.

Dated: December 2, 2013ENTER:

Brooklyn, NY

_______________________ [*9]

Steven Z. Mostofsky, JFC