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Penal Law, § 130.65….. Cont

Secondly, the validator’s interview did not occur until three months after the initiation of this proceeding, regarding incidents that occurred almost two years earlier. Prior to the validator’s interview, the court had ordered supervised visitation. The mother refused to permit
supervised visitation and the court was given the clear impression that the mother would not comply because she considered the father a sex abuser. The court does not credit the mother’s testimony that she has never spoken to her children regarding the father’s actions.

Despite the mother’s denials, the criminal court has observed the mother’s behavior, demeanor and outbursts during the yearlong proceedings, and concludes that the mother characterized the father as a sex abuser and, continuously and repeatedly made such statements to these children long before the children were interviewed by Dr. AM. Given the history of physical abuse against the mother, the negative feelings of the children toward the father due in part to the domestic violence witnessed by them, the children’s protective feelings towards their mother and the mother’s own psychological problems, the court concludes that these children were influenced by the mother to view the father’s behavior as acts of sexual abuse.

Although both children may have perceived the father’s actions as sexual in nature, because the mother has characterized as such, the Commissioner has still failed to prove that the father’s actions were performed with an intent for sexual gratification.

The Commissioner, however, has proven by a preponderance of the evidence that the children are neglected because of the consistent exposure to domestic violence in the parental household.

The Commissioner has offered Dr. AM’s expert testimony wherein she opined that the children were at a substantial risk for emotional and psychological impairment as a result of the domestic conflict and violence of the parents. The children informed Dr. AM that they witnessed the father beating the mother with his fists, kicking her and at one time breaking a guitar over the mother’s legs. Although no direct medical evidence was produced as to the seriousness of the resulting physical injuries to the mother, proof of the effects of such conduct upon the children was clearly presented. The children over the years have been exposed to escalating instances of physical abuse upon the respondent mother and, as a result, the children exhibited behavioral, emotional, and academic difficulties.
The court notes that he children have been emotionally and psychologically scarred by the persistent pattern of domestic violence which included several instances wherein the father put a gun to the mother’s head and threatened to kill her, as well as instances wherein the children were caused to flee the home in the middle of the night during a domestic altercation.
The amount of physical assault, violence, verbal obscenities and denigrating treatment the parents have exhibited towards each other have imprinted fear, apprehension, and anxiety in each of the children.

With respect to the mother’s psychological or mental condition, the Commissioner has not made any specific allegations. Nevertheless, the court cannot ignore the overwhelming evidence both direct and circumstantial, that the mother is mentally impaired.

The mother’s psychological problems appear to have interfered greatly with her ability to adequately care for these children and to act in their best interests. The court heard the testimony of Dr. SS, a psychologist, SA, a social worker, and DD, the caseworker, all of whom confirm the mother’s mental impairment and inability to make rational decisions in the children’s best interest.

SA, a social worker at Good Shephard has known the family for five years. She described Mrs. M. as a manic-depressive who exhibited disorganized thought, rapid speech and mood swings. She testified that Mrs. M. had grandiose self-image because she is a nurse, but could not function on a daily basis.

The mother’s grandiose self-image that as a nurse, she is unquestionably qualified to make all major decisions affecting the welfare of her children, has pitted her against educators, psychiatrists, social workers and the court, all of whom have either recommended or directed that the mother undergo psychiatric counseling for herself and the children. Her refusal and/or inability to comply with these directives, is a further indication of her willingness to substitute her own impaired judgment for that of trained professionals and the court. A finding of neglect for impairment of emotional health is warranted when a parent does not pursue a course of therapy recommended by qualified health professionals.

Based upon the credible evidence, the court amends the petition pursuant to Family Court Act § 1051(b) to include an allegation of mental impairment and makes a finding of neglect for impairment of the children’s emotional and psychological well-being based upon the mother’s own mental condition akin to In the Matter of Ayana E..

The court finds by a preponderance of the evidence that pursuant to Family Court Act § 1012(f)(i)(A) that both respondents neglected the educational needs of the children.

Based upon the testimony of SA and Mrs. M., as well as the testimony of Dr. AM, the court finds that the excessive absences and tardiness have had a negative impact upon the children’s education and that they have been emotionally and mentally impaired by their parents’ actions.
The children missed a great deal of school and were often late for school. MM and DM, despite being very intelligent, were failing in school, as a consequence of their excessive absences. Both children fell asleep in class. In fact, MM was left back in the fifth grade and DM was in danger of being left back.

The social worker, SA, opined that their academic difficulties were due to the emotional upheaval suffered as a result of the violence in their household and because of the parents’ improper supervision. MM missed fifty-nine days of school in one year. Many of these absences were due to his alleged refusal to go to school, in which the respondents acquiesced. Although Mr. M. was asleep during the morning hours because of his work shift, while the children should have been prepared for school, he failed to ensure that the children regularly attend school.
Based upon the totality of the credible and material evidence, the court makes the following finding of facts:

The allegations of sexual abuse are dismissed on the grounds that the Commissioner has provided insufficient corroboration to establish sexual intent pursuant to FCA § 1046(a)(vi) and (viii).

The allegations of emotional and psychological impairment of the children due to domestic violence are hereby sustained against the father.

The court makes a finding pursuant to FCA § 1051(b) and (d) that a finding of neglect is warranted against the mother for the emotional and psychological impairment of the children resulting from her own mental impairment.

The allegations of educational neglect are hereby sustained against both parents.

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