Charles DD, Matter of

• Decision Date: 19 July 1990
• Citation: 163 A.D.2d 744,558 N.Y.S.2d 720
• Parties: In the Matter of CHARLES "DD" 1 et al., Alleged to be Abused Children. Madison County Department of Social Services, Respondent; Bernard "EE", 1 Appellant, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 720

558 N.Y.S.2d 720

163 A.D.2d 744

In the Matter of CHARLES "DD" ¹ et al. Alleged to be Abused Children Madison County Department of Social Services, Respondent Bernard "EE", ¹ Appellant, et al., Respondent.

Supreme Court, Appellate Division Third Department.

July 19, 1990.

Richard Castellane, Hamilton, for appellant.

Lawrence P. Brown, Madison County Dept. of Social Services, Wampsville, for respondent.

Before MAHONEY, P.J., and MIKOLL, YESAWICH, LEVINE and MERCURE, JJ.

MIKOLL, Justice.

Appeals (1) from an order of the Family Court of Madison County (Humphreys, J.), entered February 15, 1989, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 10, to adjudicate respondents' children to be abused, and (2) from an order of said court, entered March 7, 1989, which, inter alia, prohibited contact of respondent Bernard "EE" with the children.

This proceeding alleging abuse was commenced by a petition dated December 7, 1988 and was based on certain incidents of sexual abuse which occurred in 1980. Respondents, the stepfather and mother of Charles, Tina and Sabrina "DD", were charged with abusing the children pursuant to Family Court Act § 1012. The children were 14, 12 and 11 years old, respectively, at the time of the hearing of the petition. After a lengthy hearing, Family Court found that the children were on a weekend visitation with respondents from September 20, 1980 to September 21, 1980 ²; they were then six, four and two years of age, respectively. The children were returned therefrom in a filthy, lice-ridden condition, and the two girls had swollen vaginal and rectal areas. All three children thereafter began acting out sexual acts for a substantial period which, upon inquiry, the children said they were taught by the stepfather with their mother present. Tina related that the stepfather touched them in their pubic areas. The children were also permitted to view sexual acts by the stepfather, and Tina and Charles were taught to assume sexual positions as to one another. The children were deeply disturbed after the visitation, as evidenced by their crying in their sleep and episodes of bed-wetting. The girls' foster mother, who testified as to the physical condition of the girls, reported the incident to a crisis intervention center and took the girls to a physician several days later. The physical evidence of irritation had subsided by then and the physician could not confirm if sexual abuse had occurred. The evidence also disclosed that the stepfather pleaded guilty in a previous criminal proceeding to charges relating to sexual activity with the mother's 16-year-old sister and he had been convicted for drug abuse as well. There was also evidence that on another supervised visit of recent vintage, the stepfather inappropriately hugged Tina, touching her breasts, and Tina testified to a feeling of unease in his presence. Family Court found the testimony of the children's foster mothers to be corroborative of Tina's testimony which, in turn, was sufficient to prove the allegations of sexual abuse as to all three children by clear and convincing evidence (see, Family Ct. Act § 1046[a][i].

The dispositional hearing further disclosed that on another occasion, a prior order of Family Court, directing that the stepfather have no contact with the children, was violated. During a visit by the children with their mother, the stepfather was found to have been present in the home and, on this occasion, the stepfather, the mother and the children all slept together on one mattress. There was testimony from the girls of inappropriate tickling of the children by the stepfather. Family Court found that both the stepfather and the mother perjured themselves in denying that he was present in the home on this occasion.

The record also disclosed that the mother was very dependent on the stepfather and was dominated by him. Attempts to teach respondents parenting skills were partially successful with the mother but totally ineffective as to the stepfather. The children have affection as to their mother but exhibit deep-seated reservations as to their stepfather. He fills the children with unease, particularly Tina.

Family Court found that respondents pressured the children into consenting to change their surnames to that of the stepfather and that the children were emotionally disturbed by the exerted pressure. Most recently, Charles was pressured by respondents to indicate that he wished to live with them. They promised him he could drive the stepfather's car and have ready access to videos if he did as they asked. Respondents spend most of their free time watching videos. The testimony also bore out another incident reflective of respondents' home life, wherein the mother admitted watching a video with her son in which frontal nudity was shown. There appears to be no understanding by respondents of their parenting responsibilities. Respondents react to the children as peers, rather than authority figures, thereby reflecting their immaturity.

Family Court concluded that further contact with the stepfather was contraindicated and detrimental to the best interests of the children. Custody of the children was continued with petitioner for 18 months with continued supervised...