Dutchess County Dept. of Social Services on Behalf of Janet C v. Bertha C

• Decision Date: 24 January 1986
• Citation: 498 N.Y.S.2d 960,130 Misc.2d 1043
• Parties: DUTCHESS COUNTY DEPARTMENT OF SOCIAL SERVICES on Behalf of JANET C, Petitioner, v. BERTHA C, Respondent.
• Court: New York Family Court

Page 960

498 N.Y.S.2d 960

130 Misc.2d 1043

DUTCHESS COUNTY DEPARTMENT OF SOCIAL SERVICES on Behalf of JANET C, Petitioner, v. BERTHA C, Respondent.

Family Court, Dutchess County.

Jan. 24, 1986.

Adina Gilbert, Dutchess County Dept. of Social Services, Poughkeepsie, by Kathryn Lazar, for petitioner.

Bella Weiss, Fishkill, for respondent.

Philip Mattina, Fishkill, law guardian.

Samuel Brooke, Poughkeepsie, for father.

GEORGE D. MARLOW, Judge.

A petition was filed with this court by the Dutchess County Department of Social Services (hereinafter DSS), pursuant to Article 10 of the Family Court Act, alleging that respondent committed, and allowed the commission of various acts of child abuse upon her four year old daughter, Janet. The petition avers, inter alia, that respondent had sexual contact with her daughter. Petitioner also claims she allowed more than one of her own boyfriends to have sexual contact with Janet, and that respondent and her boyfriends engaged in various sexual acts in the child's presence and view.

This proceeding follows a report of suspected child abuse given to petitioner on November 5, 1984. That report was based on a statement of respondent's daughter made to one of her playmates that she had been "licking the privates" of her mother's boyfriends. Thereafter, a DSS caseworker obtained respondent's permission to interview the child. However, that interview was terminated at respondent's insistence after a mere ten minutes. Subsequent attempts to arrange a meeting with the child, with the cooperation of respondent, met with no success. Respondent simply refused to allow the child to discuss the matter outside of her presence. Nevertheless, with the concurrence of the child's natural father, who is divorced from respondent, the child was interviewed by Rene Finn of the Beacon Police Department and Margaret Shuhala, a caseworker in the Dutchess County Child Protective Services Unit. During the course of that December 16, 1984 interview, the child, aided by anatomically correct dolls, indicated that she had been sexually and otherwise abused by her mother and by men in her mother's presence. A report of that interview and the testimony describing it revealed no telling, physical evidence of the alleged abusive acts.

However, on the basis of the latter interview this proceeding was brought, the child was removed from respondent, and she was placed with her father and his present wife. That placement continues following a hearing held pursuant to Section 1028 of the Family Court Act.

The subsequent fact-finding hearing was held over the course of several days. This decision addresses respondent's motion to dismiss at the conclusion of petitioner's direct case.

It is initially noted that the child's descriptions of the various sexual acts, as relayed to the court by petitioner's witnesses, were clear, detailed, and specific. If properly corroborated (Family Court Act Section 1046), the conduct alleged unquestionably constituted gross forms of sexual abuse of the child by and with the consent of respondent. Therefore, the most difficult issue confronting this court at the conclusion of petitioner's direct case concerns the legal sufficiency of the evidence offered to corroborate the child's hearsay statements.

Section 1046(a)(vi) of the Family Court Act, in pertinent part, provides that in any hearing under Article 10:

previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including but not limited to types of evidence defined in this subsection shall be sufficient corroboration. The testimony of the child shall not be necessary to make a fact-finding of abuse or neglect. (Emphasis added).

In an attempt to ease the evidentiary requirements in child abuse and neglect cases, the last sentences of the quoted statute were added by our State Legislature during the pendency of the instant matter. The new evidentiary standard was made effective immediately and applicable to pending proceedings. (See, 1985 Session Laws, Chapter 724).

In the memorandum submitted in support of the amendment by its sponsor, Senator Mary B. Goodhue, the purpose and intent of the legislation are abundantly clear. Prior to the amendment, the courts took differing positions on the degree and quality of corroboration needed as proof in neglect and child abuse proceedings. In cases such as Matter of Margaret W., 83 A.D.2d 557, 441 N.Y.S.2d 17; Matter of Nicole S., 123 Misc.2d 364, 368, 474 N.Y.S.2d 212; Matter of Lydia K., 123 Misc.2d 41, 472 N.Y.S.2d 576; and Matter of Cindy B., 122 Misc.2d 395, 471 N.Y.S.2d 193, the courts required a high degree of corroborative proof to sustain an abuse or neglect petition. The standard judicially adopted approached that which is utilized in criminal prosecutions wherein each element of the offensive conduct as well as the identity of the perpetrator must be adequately and separately proven beyond a reasonable doubt. This was so despite Section 1012 of the Family Court Act, which specifically made the criminal standard of corroboration inapplicable to neglect and abuse proceedings.

Pointing to the need to afford courts an opportunity to attempt to deal with various forms of child abuse and neglect, to give aid to victimized children, and to prevent a recurrence of offensive conduct, the new legislation was intended to adopt the less stringent common law standard of corroboration. That standard, as defined in Black's Law Dictionary, refers to corroborating evidence as "evidence supplementary to that already given and tending to strengthen and confirm it; additional evidence of a different character to the same point."

Even prior to the enactment of the foregoing amendment, its philosophy was adopted in Matter of Tara H. (Family Court Westchester County, N.Y.L.J. October 19, 1984, p. 15, col. 4). There, the court referred to the common law definition of corroboration contained in Ballentine's Law Dictionary, which speaks of corroboration in terms of "evidence of such substantial facts and circumstances as will produce in a sound and prudently cautious mind a confident conclusion that the testimony of the complainant is true in all essentials ... additional evidence of a different character to confirm the same point ... such as tends to show its truth, the probability of truth."

The opinion in Tara H., supra, points out that corroboration commonly manifests itself in the form of "apparently inflicted injuries ... (a form of res ipsa), admissions of a parent, even though retracted, and the sworn testimony of others (adults and children)." (Footnotes omitted). The court went on to review the great difficulty normally encountered in child abuse cases in which there may be no emotionally uninvolved or willing eyewitness to the events, and little or no physical evidence of trauma when the abusive acts are later disclosed. The only real or meaningful evidence of the tragic events may be the out-of-court statements of the young victim, whose words, no matter how convincing, would be insufficient if some reasonably reliable and constitutionally acceptable means of corroboration were not found, approved, and utilized.

Among the factors given significant corroborative weight by Judge Miller in Tara H. was the testimony of the individual who conducted the "validation interview." The testimony of this trained and experienced expert alluded to various actions and reactions which had been observed concerning the subject child which were consistent with the forms of response usually associated with sexually abused...