DSS on Behalf of Moria I. v. Manuel S.

• Decision Date: 13 July 1990
• Citation: 148 Misc.2d 988,563 N.Y.S.2d 592
• Parties: In the Matter of DSS on Behalf of MORIA I. and John S., Petitioner, v. Children under Eighteen Years of Age Alleged to be Abused/Neglected by MANUEL S., Respondent.
• Court: New York Family Court

Page 592

563 N.Y.S.2d 592

148 Misc.2d 988

In the Matter of DSS on Behalf of MORIA I. and John S., Petitioner, v. Children under Eighteen Years of Age Alleged to be Abused/Neglected by MANUEL S., Respondent.

Family Court, Dutchess County.

July 13, 1990.

[148 Misc.2d 989] Ian G. MacDonald, Dutchess County Atty., Poughkeepsie, for Dept. of Social Services.

Michael Dahowski, Poughkeepsie, for respondent.

James Meier, Wappingers Falls, law guardian.

DAMIAN J. AMODEO, Family Court Judge.

In these child protective proceedings it is alleged that respondent sexually abused his step-daughter, Moria I., and neglected his son, John S. Throughout the matter petitioner has been represented by the office of the county attorney, respondent by a court-appointed attorney and the children by a law guardian. At the fact-finding hearing petitioner called Moria I., the alleged victim of the sexual contact, and Beth Brushcini, a Case Manager II with the Department of Social Services. In addition to testifying in his own defense, respondent called his religious advisor, Jaleel Shakir, and his mother, Geneva S. The court has also considered memoranda received from counsel for the parties.

FINDINGS OF FACT

Based upon the testimony and demeanor of the witnesses and other material received, the credible evidence supports the following findings of fact:

Moria I., respondent's step-daughter, was born on February 1, 1977, and is the natural child of Teresa S. and Gary I., whose marriage terminated in divorce. John S. was born on May 12, 1987, the natural child of Teresa S. and her husband, Manuel S., the respondent in this proceeding.

A report of suspected child abuse was received by petitioner on February 5, 1990, alleging that Moria had been sexually abused by respondent. During the investigation which followed, Moria informed Ms. Brushcini that on numerous occasions, from the time she was in third grade until November 1988, respondent requested that she disrobe in front of him, after which he would touch, rub and fondle her private areas. The final incident occurred in November, 1988; Moria related that respondent demanded that she disrobe, and while threatening suicide with a gun, intimidated and assaulted the child as she resisted, after which he rubbed his penis against her vaginal area.

When Ms. Brushcini confronted respondent with these allegations, he denied that he had done anything wrong. Ms. Brushcini noted that in a subsequent telephone conversation, initiated by him, respondent stated that, if he had done such things, he needed help.

It has been respondent's position throughout, that Moria's claims were racially motivated and were being made by the child in an effort to disrupt respondent's marriage to the child's mother.

Moria, who is now thirteen, very credibly testified under oath and detailed the sexual contacts respondent committed against her. She stated that these events usually took place at night, while her mother was not at home; that they took place at irregular intervals; that she asked respondent to stop on many occasions; that he would stop for brief periods, but would later resume the conduct; that she feared respondent and did not attempt to resist; that respondent had warned that, if she told her mother what was taking place, the woman would probably have a heart attack and, if she revealed it to her natural father, respondent and he would undoubtedly become involved in a violent confrontation. For these reasons Moria informed neither her natural father nor her mother of respondent's inappropriate conduct. However, Moria finally told her mother sometime after the last incident described above. She also stated that she previously revealed respondent's conduct to a teacher or other school official. The court is concerned Apart from the sexual contacts, respondent's moderate drinking and frequent arguments between respondent and her mother, Moria's description of his presence in the household was otherwise appropriate. Respondent, a cook by profession, prepared meals for the family, attended to household chores and the other needs of the family. The parties went places together and visited relatives as a family.

that, for some undisclosed reason, no action was ever taken by school authorities, although mandated to do so by statute.

On cross-examination, in answer to the defenses raised by respondent, Moria denied that she wanted to break up the marriage between respondent and her mother; denied that she always disliked respondent because he was black and she and her mother were white; denied that she refused to be photographed with respondent and her mother at their wedding because she was embarrassed; denied that she refused to play outdoors with respondent's nieces when they visited because they too were black; and denied that she attempted to avoid being seen in public with respondent.

Respondent, testifying in his own defense, categorically denied all acts of impropriety with Moria and even rejected the possibility that he had engaged in any activity, however innocent, which may have been misinterpreted by Moria. He related a series of incidents which he claimed were indicative of Moria's racial prejudice and motives in this matter. On the other hand he conceded that he had a criminal record involving two separate armed robberies and a conviction for driving while intoxicated. He acknowledged that at the time of the fact-finding hearing, he was incarcerated in state prison, after being returned on a parole violation. However, he asked the court to note that each of his prior convictions was the result of a guilty plea entered by respondent, and, that in contrast, he refuses to admit any guilt in this matter because he has done nothing wrong.

Although offered as a character witness, the testimony of Mr. Shakir was of limited value since his knowledge of respondent was essentially confined to personal contacts while respondent was incarcerated at the Dutchess County Jail and thereafter. Mr. Shakir had no knowledge of respondent's reputation for truthfulness in the community and based his opinion as to respondent's veracity on respondent's adherence to various religion teachings.

The testimony of Geneva S., respondent's mother, was limited to her observations of Moria at the reception following respondent's marriage to Moria's mother, which was attended by 13 to 15 people, including three or four children. She testified that Moria resisted being photographed with the wedding party and would not play with the other children who were present. Although everyone present at the party, except Moria and her mother, were black, respondent's mother stated that she did not know why Moria was acting as she did relative to the photographs or the other children.

APPLICABLE LAW AND CONCLUSIONS

Respondent as step-parent of Moria and parent of John and as an individual in whose care these children were on a regular basis, when the acts alleged occurred, is a "person responsible" for their care as defined in Section 1012(a) & (g) of the Family Court Act.

a. Abuse of Moria

Section 1012(e)(iii) of the Family Court Act defines a sexually abused child as one who is less than eighteen years of age, whose parent or other person legally responsible for the child's care "commits or allows to be committed, a sex offense against such child, as defined in the penal law ..." Section 130.60(2) of the Penal Law provides that a person is guilty of sexual abuse in the second degree when he subjects a person less than fourteen years of age to sexual contact which is defined as "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying Unlike many cases involving allegations of sexual abuse where the court is asked to rely on out-of-court statements of the child, which require corroboration (see, Family Ct. Act sec. 1046; see also Matter of Christina F., 74 N.Y.2d 532, 549 N.Y.S.2d 643, 548 N.E.2d 1294), here the alleged victim testified under oath and was subject to protracted and vigorous cross examination. Her testimony was clear and detailed as to the multiple incidents which had taken place. Her testimony was not only very credible, but unshaken.

sexual desire of either party...." (Penal Law sec. 130.00[3].

Respondent's suggestion that Moria was motivated by racial bias and a dislike for him was equivocal at best. Much of his own testimony and that of the child indicated that Moria accepted and confided in respondent as her "dad" and that she even asked to accompany respondent to visit places, knowing that she would be the only white person there. Even if there was some embarrassment on the part of the child concerning the racial differences existing in her home, nothing was presented which came close to suggesting that Moria's discomfort was so intense that it would cause her to falsely accuse respondent of these very serious acts of misconduct.

On the other hand, the testimony of respondent, as a convicted felon, is subject to question (See, CPLR sec. 4513; Prince, Richardson on Evidence [10th ed.], sec. 506; Matter of Linda O., 95 Misc.2d 744, 408 N.Y.S.2d 308). In addition, the risk of criminal prosecution and the effect which an adverse finding in this matter might have on respondent's eligibility for parole, raises further questions as to the credit to be accorded his testimony.

The evidence presented clearly supports a finding that respondent subjected Moria to improper sexual contacts and that the petitioner has sustained its burden as to that child.

b. Neglect of John

Section 1012(f)(i)(B), in pertinent part, defines a "neglected child" as one "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent ... to exercise a minimum degree of care ... in providing the child with proper supervision or guardianship, by unreasonably inflicting harm ......