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Court Decides Custody in Light of Molestation Allegations


Two petitions were filed by the Administration for Children’s Services (ACS) in May 2010 on behalf of three-year-old child, and five-year-old daughters of Respondent. The petition on behalf of five-year-old also named the child’s mother, as co-respondent, and the petition on behalf of three-year-old child named her mother, as co-respondent. The allegations in the petitions as to both children are identical. A New York Family Lawyer said that, the petitions allege that both children are less than eighteen years of age and, their father, Respondent, has sexually abused them, as defined in Family Court Act § 1012 (e) (iii), and has impaired their physical, mental or emotional conditions, or placed them in imminent danger of such impairment, as a result of his failure to exercise a minimum degree of care in providing each of them with proper supervision or guardianship, or by any other acts of a similarly serious nature requiring the aid of the court within the purview of the Family Court Act § 1012 (f) (i) (B).

A New York Custody Lawyer said that, the fact finding hearing was commenced January 24, 2011 and was completed on March 23, 2012. ACS called two witnesses. A non-subject child, testified via two way circuit video from a residential treatment center in Syracuse, New York. The ACS Caseworker also testified. Respondent testified on his own behalf.

A Nassau County Family Lawyer said that, petitioner ACS asks that the court, pursuant to Family Court Act § 1012 (e) (iii) and§ 1012 (f) (i) (B), find that the subject children are derivatively neglected or abused children based on Respondent’s 2001 conviction of rape in the second degree of his two half-sisters, then ages fourteen and seven years, his registration as a level three sex offender, and the testimony of non-subject child who alleged that Respondent committed sex offenses against her around 2006-2008. The Attorney for the non-subject child joins in ACS’s application. Respondent argues that the court must dismiss the instant petitions based on ACS’s failure to establish derivative abuse or neglect of the two subject children or to present evidence to show that Respondent has harmed the children or placed them in substantial risk of harm. Further, Respondent asserts that the testimony of the thirteen-year-old child as to his alleged sexual touching of her was not credible and could not be used as a predicate offense for a finding of derivative child abuse or neglect.
The issue in this case is whether the subject children should be declared as derivatively abused and neglected.

The court’s authority to enter derivative findings is found in Family Court Act § 1046 (a) (i), which provides that “proof of abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent.” Section 1046 (a) (i) authorizes the family court to extend ” its protective cloak around a child’ ” before injury occurs. A Nassau County Custody Lawyer said this evidentiary rule recognizes “when there is a finding that one child is abused, experience shows that there is a substantial risk of future abuse to the other children” holding that the death of 19 month old infant due to non-accidental scalding burns constituted child abuse by the respondent mother and rendered his five-year-old surviving sibling, who had not suffered any injuries, a derivatively abused child.

The courts have sustained derivative findings based on predicate offenses by respondents against biological children, legally-related children and non-related children finding respondent’s commission of sexual abuse against adopted stepdaughter, who lived with him, a basis for derivative neglect finding as to his birth daughters grandfather’s conviction by guilty plea of rape in the second degree of his 14-year-old daughter served as predicate offense in finding derivative neglect of his grandchildren; respondent sexually abused female children in a day care center based in his home, which formed a predicate offense for a derivative neglect finding as to his twin sons, one of whom was in the home when respondent sexually abused the other children; appellate court upheld a derivative neglect finding as to the sons of respondent based on his sexual abuse of his 16-year-old sister-in-law, who resided with him for four months and for whose care he was legally responsible. Thus, derivative findings of child abuse and neglect are powerful tools and the due process rights of parents and children require an individualized determination of the actual harm or imminent danger of harm that the prior offensive conduct imposes for the respondent’s children or other children currently in his care.

The courts have developed the following framework for analyzing and determining whether a derivative finding is warranted: 1) a predicate offense of the abuse or neglect of a child is established; 2) the offense “was not remote in time”; 3) the prior offense was “serious or involved a course of abusive or neglectful behavior”; and 4) “the conduct demonstrated a fundamental defect in respondent’s understanding of the duties and obligations of parenthood”.
In cases alleging derivative abuse based on a predicate sex offense, the statute requires the court to find first that the respondent “committed (or knowingly allowed to be committed) a felony sex offense” respondent’s rape of eight year old child of his paramour formed predicate offense for derivative finding of severe abuse as to his non-injured biological child). The statute does not specify the person against whom the felony sex offense must have been committed. Moreover, for the purpose of establishing a predicate offense, the statute does not require that the respondent be a parent or other person responsible for the care of the first child victim holding that respondent’s victimization of nine-year-old daughter of maternal cousin, for whom he was not legally responsible, still provided a “legal basis for a finding of derivative neglect of his own two children,” reversing family court’s dismissal of the derivative neglect petition. The petitioner has the burden of proof and must establish the elements to support a derivative finding by a preponderance of “only competent, material and relevant evidence”.

This court does not find by a preponderance of the evidence that the testimony of the non-subject child established acts of sexual abuse by Respondent. The child was vague as to the times and circumstances of the three alleged incidents. She testified that her siblings were in the rooms with her when all three incidents occurred, but none of them awoke. Specifically as to the incident in 2010, she stated that four siblings were asleep in one bed with her, that they changed positions during the night, and that Respondent put his penis on her buttocks. She stated, however, that none of her siblings awoke or witnessed the alleged molestation and that she did not cry out. The court finds this description implausible and incredible. Further, the ACS Caseworker failed to interview or makes any attempt to interview any of the non-subject child’s siblings or her mother to investigate or confirm the allegations. Nor did the Caseworker present any evidence that a Family Court or Criminal Court action had been brought against Respondent based on her allegations. The non-subject child stated she did not report these alleged events for two years because she feared Respondent. However, she also testified she was not afraid of him, he had never threatened her and she had not had contact with him for about two years. Accordingly, the court finds that the testimony of the non-subject child is not sufficient to establish by a preponderance of the evidence that Respondent committed an act of sexual abuse against her. The court also finds that the testimony of the ACS Caseworker to be inaccurate as to many facts to which he initially testified nor was his investigation thorough as to the non-subject child’s allegations of Respondent’s sexual abuse. ACS has proven by a preponderance of the evidence, and Respondent has admitted to, his 2001 conviction for felony sex offenses committed against his minor half-sisters, offenses which constitute acts of abuse defined in Family Court Act § 1012 (e) (iii) and establish a predicate offense of child abuse.
To sustain a derivative finding based on the 2001 conviction, the predicate offense must be analyzed first as to its “time proximity” to the birth of the subject children and the initiation of the instant proceedings. The court also must analyze relevant time frames and the current circumstances of Respondent to determine whether the conditions that led to the 2001 conviction still exist. The relevant time frames in this matter include Respondent’s 2001 conviction, his release from prison in 2005, and his completion of parole conditions in 2007. The child was born in 2009 and the other in 2007. The court finds that the egregious nature of the crimes that formed the basis for Respondent’s conviction in 2001, the closeness in time between Respondent’s release from prison and the birth of his daughters, and the initiation of these proceedings in 2010, are sufficient to support a finding of “time proximity”. However, the evidence that establishes a predicate offense does not by itself establish a prima facie case of derivative neglect or abuse.

The dispositive question remains whether the defective conditions that led to Respondent’s sexual abuse and rape of his minor half-sisters and his designation as a level three sex offender continue to exist to the extent that ” the nature of the direct abuse or neglect, notably its duration, the circumstances surrounding its commission and whether, on the whole, it can be said to evidence fundamental flaws in the respondent’s understanding of the duties of parenthood’ ” are sufficient to serve as a basis for this court’s finding of derivative abuse and/or neglect. A finding of derivative neglect is warranted where the evidence establishes that “the abuse by respondent demonstrates such an impaired level of parental judgment as to create substantial risk of harm for any child in his care’. Further, such a finding is justified where the abuse or neglect was repeated was perpetrated on multiple victims or was accompanied by evidence that other children were nearby when the abuse occurred.

Based on the court’s finding that the testimony of the non-subject child was not credible, the court finds that Petitioner ACS has not demonstrated by a preponderance of evidence that the sexual offenses committed by Respondent in 2001 were repeated, nor has ACS presented any evidence that Respondent has harmed his daughters. To warrant a derivative finding in this matter, ACS must demonstrate that Respondent’s 2001 conviction is “a reliable indicator” that the subject children’s “physical, mental or emotional condition is in imminent danger of becoming impaired”. ACS has established the fact of Respondent’s conviction and status as a level three sex offender but these facts by themselves do not establish a presumption that he poses a danger to his children.

In this matter, Respondent testified candidly and did not deny his guilt for his sex offenses against his half-sisters, for which he was arrested in 2001 when he was 22 years of age. He acknowledged the deficiencies that led to his conviction. Respondent stated in uncontradicted testimony that he engaged in and completed a sex offender treatment program while incarcerated and complied with the conditions of his post-release supervision, which expired in January 2007. These circumstances are clearly distinguished from those in which the courts found a continuing substantial risk of harm by a registered sex offender. The court finds that ACS’s case rests on Respondent’s 2001 conviction and status as a registered sex offender, and these facts, standing alone, cannot serve as the sole basis for a derivative finding of neglect and/or abuse in this matter.

Accordingly, the court finds that Petitioner has failed to prove by a preponderance of the evidence derivative neglect or abuse by Respondent as to the subject children, and dismisses the petitions.

When there is a finding that one child is abused, experience shows that there is a substantial risk of future abuse to the other children. There is a need for the legal services of a Bronx Abuse and Neglect Attorney and/or Bronx Order of Protection Attorney at Stephen Bilkis and Associates, in order to protect the child from further harm. Call us.

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