[*1]
Matter of Autumn A. v Anthony P.
2009 NY Slip Op 51940(U) [24 Misc 3d 1250(A)]
Decided on September 9, 2009
Family Court, Richmond County
DiDomenico, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 9, 2009
Family Court, Richmond County


In the Matter of Autumn A. A Child Under the Age of Eighteen Years Alleged to be Abused and/or Neglected by

against

Anthony P. Danielle A., Respondents.




NA-3172/2006



Petitioner (Administration for Children Services)

Victoria Gibbons, Esq.

51 Stuyvesant Place

Staten Island, New York 10301

Law Guardian

Mitchell P. Newman, Esq.

94 Hancock Street, 2A

Staten Island, NY 10306

Attorney for Respondent Mother

John Orlando, Esq.

354 84th Street

Brooklyn, NY 11209

Attorney for Respondent Father

Richard Katz, Esq.

43 New Dorp Plaza

Staten Island, New York 10306

Catherine M. DiDomenico, J.



On July 14, 2006, The Administration for Children's Services (hereinafter "ACS") filed an abuse Petition against Anthony P., (hereinafter "Respondent Father") alleging that, on or about July 10, 2006, Respondent Father took four year old Autumn to North Central Bronx Hospital alleging that several men sexually molested his daughter. The Petition alleges that Respondent Father appeared to be under the influence of drugs or alcohol at the hospital. The Petition further alleges that Respondent Father was observed in the hospital to be passionately kissing Autumn on her neck and rubbing her back underneath her shirt. The Petition alleges that Respondent Father refused to allow the child to be examined for sexual abuse. The Petition further alleges that Autumn is a neglected child in that Respondent Father abuses drugs including PCP and marijuana, and is not enrolled in a drug rehabilitation program. Last, the Petition alleges that Respondent Mother knew it was unsafe to allow Respondent Father to have unsupervised contact with Autumn and allowed him to do so in violation of a full stay away Order of Protection from Family Court on behalf of Respondent Mother and Autumn.

On November 29, 2006, Respondent Mother consented to a neglect finding pursuant to Family Court Act Section 1051(a). The case proceeded to fact finding against Respondent Father on January 9, 2008, March 3, 2008, June 6, 2008, and January 20, 2009. ACS called two witnesses: (1) Magdalena Leszko, Caseworker and (2) Police Officer Jones. Respondent Father called Sara Anders, Social Worker as his witness. Respondent Father did not testify. ACS introduced the following documents into evidence: ORT dated 7/10/06 (Petitioner's 1) and Child Abuse Evaluation (Petitioner's 2). The Court took Judicial Notice of Order dated September 9, 2005, entered on default, Ordering Respondent Father to stay away from Respondent Mother and Autumn until September 8, 2010.

Findings of Fact

After considering the testimony of the fact finding witnesses, and assessing their credibility, the Court credits their testimony and makes the following factual findings. The Court draws the strongest adverse inference for Respondent Father's failure to testify at trial.

On July 13, 2006, Caseworker Leszko conducted an interview of then four year old Autumn in her foster home. Autumn disclosed that over the past weekend while in a movie theater watching a pirate movie with Respondent Father and his friend Franco, "Franco put his dick in her mouth." Autumn indicated that Respondent Father was present when this happened and did not do anything. Autumn further stated that after seeing the pirate movie she was in a car accident with Respondent Father. Autumn further disclosed that Respondent Father takes off her pants and underwear and touches her. Autumn demonstrated this to Ms. Leszko by placing her hand on her vagina. Autumn further said that Respondent Father kisses her on her lips.

On July 14, 2006, Ms. Leszko conducted a follow up interview of Autumn at the Child Advocacy Center. Ms. Leszko took Autumn into the interview room and spoke with her in the presence of Detective Perez. When Ms. Leszko asked Autumn what happened over the weekend, the child began jumping on the couch and banging things. Ms. Leszko gave Autumn time to [*2]calm down by letting her play in the play area of the interview room. Autumn jumped on top of a table and began to dance in a sexually explicit manner. Ms. Leszko testified that Autumn stuck out her butt, moved it back and forth and smacked it. Ms. Leszko asked Autumn to get down from the table and Autumn said "I don't want to talk to you Franco put his dick in my mouth." Autumn ran out of the interview room.

On September 11, 2006, Ms. Leszko took Autumn to the Child Advocacy Center for a physical examination. Ms. Leszko accompanied Autumn to the bathroom when the child indicated she needed to use it. Autumn went into the bathroom stall and closed the door. A few minutes later Ms. Leszko inquired if Autumn was ready to come out. Autumn opened the stall door and stepped out naked from the waist down with her underwear and shorts at her ankles. Ms. Leszko testified that Autumn ran out of the bathroom, danced provocatively and refused to put her clothes back on.

Police Officer Jones testified that on July 10, 2006 she responded to North Central Bronx Hospital in response to a radio run alleging a past sexual assault. Officer Jones went into Autumn's room and observed her lying in bed. Respondent Father was hovering over Autumn and his arms were wrapped around her body. Respondent Father was kissing Autumn's neck and rubbing her face. Respondent Father kept saying "my baby, my baby" and "nobody is going to hurt my baby." Officer Jones testified that in her experience as a police officer Respondent Father's behavior toward Autumn was unusual. Officer Jones testified that Respondent Father was continuously rubbing Autumn's face as if he was caressing it. Officer Jones further testified that Respondent Father continued to touch Autumn while she was falling in and out of sleep.

Officer Jones asked Autumn why she was so tired. Autumn said "after daddy crashed into the pole we walked here." Officer Jones observed that Respondent Father's eyes were bloodshot and his behavior fluctuated back and forth from irate to calm. Officer Jones asked Respondent Father to step away from the child and tell her what was going on. Respondent Father was unresponsive and then said "I don't want anything to hurt my baby" and kissed Autumn and rubbed her face. Officer Jones testified that Respondent Father became upset when the hospital wanted to do a sexual offense evidence kit on Autumn. Respondent Father did not want hospital staff touching Autumn. Police Officer Jones testified that Respondent Father's behavior made her so uncomfortable she asked Respondent Father to leave the room. Respondent Father became irate and paced back and forth in the room. He indicated that he and Autumn walked from the scene of the accident in Manhattan to the hospital in the Bronx.

Officer Jones testified that she spoke with Respondent Father three separate times at the hospital. The first time she spoke with Respondent Father he said Autumn told him ten males touched her. At first Respondent Father refused to tell Officer Jones where on Autumn's body she was touched and the location where it happened. Respondent Father said she was touched in her private area and claimed it happened at Respondent Mother's house. The second time she spoke with Respondent Father he said Autumn told him a man named Franco took her to a movie and ejaculated on her face. The third time she spoke with Respondent Father he conceded he got [*3]into a car accident on a Manhattan highway and him and the child walked from the accident scene to the hospital in the Bronx.

Officer Jones testified that Respondent Father was arrested at the hospital for having contact with Autumn in violation of an Order of Protection. Autumn was released from the hospital later that same day. Officer Jones took Autumn to her police precinct and brought Autumn into the juvenile room. Officer Jones testified that Autumn could not sit still, started singing a song of a sexual nature and moved her hips back and forth in a sexually provocative manner.

Ms. Sara Anders, a Social Worker with the Child Advocacy Center, was qualified as an expert in child abuse and neglect. Ms. Anders interviewed Autumn on four occasions. Ms. Anders testified that during the third interview on September 1, 2006, she asked Autumn if anyone had ever touched her on her body in a way she did not like. Autumn responded "no" then "yes". Autumn disclosed that Respondent Father's friend Franco had touched her with his dick in a movie theater. Ms. Anders asked Autumn to draw a dick. Autumn drew a picture of Respondent Father's dick and colored it with a brown marker. Autumn then drew a picture of Franco's dick and colored it with an orange marker. At Ms. Anders's request, Autumn demonstrated what occurred by using anatomically correct dolls.

Ms. Anders further testified that, although the Child Advocacy Center could not rule out or confirm child sexual abuse, there are particular factors present in this case that strongly suggest sexual abuse. Specifically, Autumn made repetitive statements to several people regarding Franco putting his dick in her mouth. Ms. Anders further testified that Autumn appeared to have a high level of anxiety when she discussed Franco. Ms. Anders further testified that Autumn took dolls from the dollhouse in the interview room, undressed them, licked their butts and referred to their genitals as "coochie" and "dick." Ms. Anders testified that four year old Autumn's behavior alarmed her. Ms. Anders further testified that the Child Advocacy Center was concerned that sexual abuse had occurred, however, they were unable to confirm it.



The Applicable Law

An abused child is defined as a child less than eighteen years old whose parent or any person legally responsible for her care has committed, or allowed to be committed, a sex offense against the child, as defined in the penal law. See Family Court Act Section 1012(e)(iii). In a child protective proceeding, a previous statement made by the child relating to the allegations of abuse or neglect is admissible in evidence. See Family Court Act Section 1046 (a)(vi). However, the child's previous statements cannot be the sole basis for an adjudication of abuse or neglect, they must be corroborated before the court can rely on them. See Family Court Act Section 1046 (a)(vi). The child's statements can be corroborated by any admissible evidence that tends to confirm it. See Matter of Margaret W., 83 AD2d 557 (2d Dept. 1981). The Family Court has "considerable discretion to decide whether the child's out of court statements [*4]describing incidents of abuse or neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding of abuse." See Matter of Candace S., 38 AD3d 786 (2d Dept. 2007). Corroborative evidence as to the identity of the abuser is not required, provided the circumstances as a whole confirm the child's credibility. See Matter of Justina S., 80 AD2d 642 (2d Dept. 1992). Pursuant to Family Court Act Section 1012, the Penal Law requirements of corroboration of each and every element of the crime do not apply to proceedings under this Article. See Family Court Act Section 1012 (e)(iii).

The Court finds that ACS established a prima facie case of abuse and Respondent Father failed to rebut the presumption of parental culpability as he failed to testify which permits this Court to draw the strongest adverse inference. See Matter of Jasmine A., 18 AD3d 546 (2d Dept. 2005). Specifically, the Court finds that Autumn's statements that "Respondent Father takes off her pants and underwear and touches her" and that "Respondent Father's friend Franco put his dick in her mouth" were sufficiently corroborated. See Matter of Fantaysia L., 36 AD3d 813 (2d Dept. 2007). Autumn disclosed to Ms. Leszko and Ms. Anders that while in Respondent Father's care, Respondent Father's friend Franco put his dick in her mouth in a movie theater. Autumn demonstrated to Ms. Anders how Franco sexually abused her by reenacting it with dolls. See Matter of Josephine G., 218 AD2d 656 (2d Dept. 1995). Autumn further disclosed to Ms. Leszko that Respondent Father touches her while she is undressed and demonstrated by placing her hand on her vagina. When asked by Ms. Anders to draw a dick, Autumn drew a picture of Respondent Father's penis and Franco's penis. Ms. Anders and Ms. Leszko testified as to their observations of the then four year old child's age inappropriate knowledge of sexual matters and the acting out of sexual behavior. See Matter of Victoria H, 255 AD2d 442 (2d Dept. 1998). Specifically, this then four year old child used the words "coochie" and "dick", danced provocatively, and undressed and licked the butts of dolls.

Furthermore, Police Officer Jones observed Respondent Father's sexually inappropriate behavior toward Autumn in the hospital which made the police officer so uncomfortable she ordered Respondent Father to step away from the child. Police Officer Jones further testified that Respondent Father refused to allow hospital personnel near Autumn to do a sexual offense evidence kit. This testimony along with the Child Abuse Evaluation which documents adverse changes in Autumn's behavior during the relevant time period, including sexualized and aggressive behavior, sufficiently corroborates Autumn's statements. See Matter of Liza O., 47 AD3d 632 (2d Dept. 2008).

Conclusion

Accordingly, the Court finds that ACS has proven by a fair preponderance of the evidence that Respondent Father sexually abused his four year old daughter Autumn. An abuse finding is made against Respondent Father. The cause of action seeking a neglect finding on the basis of Respondent Father's drug use is dismissed for failure to meet the burden of proof. However, a finding of neglect is made for Respondent Father's conduct in the events leading up to this child's [*5]visit to the hospital and during her stay in the hospital in that Respondent Father failed to exercise a minimum degree of care in providing Autumn with proper supervision and guardianship. See Jasmine D., 55 AD3d 906 (2d Dept. 2008); Family Court Act Section 1012 (f)(i)(B).

Hon. Catherine M. DiDomenico

Acting Justice Supreme Court

Date: September 9, 2009