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Penal Law, § 130.65.

The CSS filed the instant proceeding on 9 April 1991 alleging that respondent LM sexually abused his sons, MM and DM, ages 10 and 8, respectively, by fondling their genitals and buttocks in violation of Penal Law, § 130.65. CSS also alleges that the children are psychologically and emotionally impaired as a result of the pattern of domestic violence witnessed in the parental household. The petitioner additionally asserts a claim of educational neglect claiming that the children are excessively absent and do not attend school regularly.

The court finds that the allegations of sexual abuse have not been proven by the quantum of proof necessary under Article 10. In order to sustain a finding of sexual abuse, this court must make a threshold finding that the father’s acts were done for the purpose of sexual

gratification. Because sexual abuse is predicated upon the criminal sex offenses defined in the Penal Law, evidence of “intent” is an essential element under Article 10 and as enunciated in Matter of Ruth L.

Dr. AM, the Commissioner’s only witness on the sexual abuse charge, was the validator chosen to access the children’s allegations of sexual abuse. She has been qualified as an expert. She testified that MM and DM both confirmed several instances over a period of two years where their father had fondled their genitals both over and under their clothing and had squeezed and rubbed their buttocks when sitting or reclining on the sofa. The incidents usually occurred when the mother was out of the house.

The children could not specify the number of times such touching occurred or the amount of time that elapsed between such touching. However, the boys did relate that the touching was usually brief and that long periods of time would pass between such instances. According to Dr. AM, the children denied any other form of sex contact such as having to touch their father’s genitals, or digital penetration.

The father concedes to the acts but strenuously denies that the touching was done for sexual gratification. He related to Dr. AM that he touched the boys and pulled or grabbed their genitals and buttocks when he hugged them or played with them, and it was his way of being affectionate with his sons. He also related to Dr. AM that during that period of time he sometimes showered with the boys. However, no allegations of improper touching while in the shower have been made against the father.

Testifying on his own behalf, the father admitted that he grabbed the boys’ genitals and buttocks during times he wrestled with them on the floor or on the sofa. He stated that as a child, he had been similarly touched on the buttocks and had not considered it wrong but now acknowledged that he has now come to realize that such touching transgresses proper parental boundaries.

The court finds unpersuasive that the actions described present an unequivocal and unambiguous showing of sexual abuse. It is certainly not beyond the bounds of reasonableness to find that the father’s actions were misguided attempts to demonstrate affection, or that his behavior demonstrates a lack of understanding of child development.

The Commissioner’s own witness, Dr. AM, could not confirm that the acts described by the children were done for sexual gratification. The court is not disposed to adjudge the touching described as sexual abuse. Normal interplay between parent and child, particularly in the early stages of a child’s development often involve acts of touching, squeezing, patting, and pinching various parts of a child’s body including buttocks and at times genitalia. The difference is that what might be socially acceptable when a child is an infant or toddler becomes less so as the child grows older and becomes more aware of himself as a separate human being. Thus, a parent’s respect for the child’s right to the privacy of his person should increase as the child grows and matures.

Some parents however, lack this understanding in child development and persist in dealing with an older child with the same kind of intrusive handling as when the child was an infant.

The court finds that this is a grey area in the parent/child relationship where claims of sexual abuse must be seriously examined, and extreme caution exercised, lest normal interaction be reported as sexual abuse. The damage that can occur to the parent/child relationship from an erroneous finding can be enormous and long lasting.

The court has given careful consideration to the possibility that the children may have been influenced or coached by the mother. Of critical importance here is the mother’s psychological condition during the past several years. Mrs. M.’s marked psychiatric disturbance raises serious and material issues as to her direct influence and control over the children both before and after Dr. AM’s interview. Each of the witnesses confirmed that Mrs. M. has, over the past five years, exhibited illogical thinking and often has been incoherent. The mother acknowledged that she showed the children video tapes on preventing sexual abuse. Although this fact does not indicate prompting or coaching, it is the cumulative circumstances which point in that direction.

It is to be considered that at first, the children made these allegations to a CWA caseworker only after the father had initiated a 2221 report of suspected child abuse and/or neglect against the mother. In cases of sexual abuse, children usually make initial revelations of sexual abuse to a trusted parent or relative, or friend not to a stranger. Since the mother instructed the children on preventing sex abuse long before CWA became involved with the family, and while the respondents were living together, the court finds it unlikely and improbable that the children first revealed these incidents to a caseworker, rather than to respondent mother. The court notes that this raises the possibility that revelations made to the caseworker were prompted by the mother’s statements to the children.

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.

Kings County Domestic Violence Attorneys, Kings County Sexual Abuse Attorneys and Stephen Bilkis & Associates are experts in these kinds of proceedings. If you have queries regarding the case mentioned above, please feel free to contact our firm through our toll free number or you may visit us at our office near you.

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