In the Matter of Ingrid R., Zaida C. and Carla C., Children under Eighteen Years of Age Alleged to Be Abused by Maurice L., Respondent.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Wendy Wedderburn for the Administration for Children's Services, Jeffrey L. Lewisohn for the respondent
Maria Chiu, of the Legal Aid Society, Law Guardian for the children.
The decision has been edited for the purpose of publication.
Edwina G. Richardson-Mendelson, J.
On January 25, 2005 the Administration for Children's Services (hereinafter, "ACS") filed child abuse and neglect petitions on behalf of the children Ingrid R., born October 11, 1994, Zaida C., born September 27, 1992, and Carla C., born October 28, 1993, against the respondent, Maurice L., who is not the father of any of the subject children but is alleged to be a person legally responsible for the children pursuant to Family Court Act 1012(g). The petitions allege, in pertinent part, the following:
1. According to the subject child Carla, the respondent Maurice L., a person legally responsible, forcibly touched the subject child Carla C., 11 years of age, repeatedly over the last three years. On these occasions, the respondent would enter the child's bedroom, try to climb into her bed, and touch her breasts and vagina over her clothes. Carla further reported that the respondent would watch her when she gets dressed approximately five days a week. The respondent also asked both Carla and the subject child, Ingrid, while they were taking a bath if he could join them. Said conduct is in violation of, including but not limited to New York Penal Law Sections 130.52 and 130.55, 130.60.
2. According to the subject children Carla and Ingrid, the respondent Maurice L., a person legally responsible, forcibly touched the child, Zaida C., 12 years of age, repeatedly over the last 3 years. On these occasions the respondent would enter the child's bedroom, try to climb into her bed, and touch her breasts over her clothes. According to the subject child Ingrid, on another occasion, she saw the respondent touch the subject child, Zaida's breasts over her clothes in the living room of their apartment. Further, according to the subject child Ingrid, on one occasion, the respondent pulled back the shower curtain and looked at them while they were showering. According to the subject child Carla, the respondent also watches Zaida, when she gets dressed. Said conduct is in violation of, including but not limited to New York Penal Law sections 130.52, 130.55 and 130.60.
3. The respondent mother knew or should have known of the above alleged abuse but failed to take steps to adequately protect the subject children.
4. The respondent is a person legally responsible for the care and custody of the subject children in that: a. [t]he respondent has been residing in the home with the respondent mother and subject children for over a year; b. the respondent baby-sits for the subject children when the respondent mother is out of the home; and c. [t]he respondent purchases food for the home.
The case was initially filed against the children's mother as well as Mr. L. However, at the initial appearance before another judge of this Court, ACS withdrew the petition as to the children's mother, indicating to the court that the mother was unaware of the sexual abuse allegedly perpetrated against her children. At that appearance, the Court released the children to their mother with strict ACS supervision and the children remain in her care to date. The Court also issued a temporary order of protection which excluded the respondent from the home of the children and required that he have no contact with them and that he stay at least five hundred feet away from them. This order also remains in effect to date.
Summary of the Proceedings
Issue was joined on February 8, 2005. Before trial, the respondent moved to dismiss arguing that he is not a person legally responsible for the children. That motion was denied on April 19, 2005, the Court finding that the issue of whether the respondent is a person legally responsible for the care of the subject children is a triable issue of fact. The fact-finding proceedings commenced on July 25, 2005. On August 8, 2005, based upon the evidence adduced at the trial up to that date, including evidence that the respondent shares a bedroom with the mother one or two days a week and that he has a key to the home, this Court ordered ACS to investigate whether the mother should be added as a respondent. ACS conducted an investigation but declined to name the mother as a respondent. On September 21, 2005, the trial concluded and the case was adjourned to November 1, 2005 for summations.
On November 1, 2005, the law guardian reported that the children had recanted their allegations of abuse. The law guardian moved for an order requiring that the children be evaluated by a mental health professional. That motion was granted on the consent of all parties and the trial was re-opened. ACS contracted with Dr. Don Lewittes to conduct videotaped child sexual abuse validation interviews of the children. Copies of the videotapes were entered into evidence on October 6, 2006 when Dr. Lewittes testified. Dr. Lewittes's report was admitted into evidence and his testimony continued over a number of court appearance dates concluding on October 19, 2007. On that date, the respondent was permitted to provide additional testimony and then all sides rested. The case was adjourned for submission of written summations.
Summary of the Court's Findings
After carefully reviewing the documentary evidence submitted, considering the testimony presented by all the witnesses in this matter, making the necessary credibility determinations, and considering the relevant law, this Court finds that the petitioner has established by a preponderance of the credible evidence that two of the subject children, Carla and Zaida, were indeed sexually abused as defined in Family Court Act 1012(e)(iii) by the respondent who engaged in acts against these children in violation of Penal Law §§130.52 (forcible touching), 130.55 (sexual ...