G., In re

• Decision Date: 23 May 1973
• Citation: 74 Misc.2d 606,344 N.Y.S.2d 422
• Parties: In the Matter of Kenya G., a Child under Eighteen Years of Age Alleged to be Neglected.
• Court: New York Family Court

Page 422

344 N.Y.S.2d 422

74 Misc.2d 606

In the Matter of Kenya G., a Child under Eighteen Years of Age Alleged to be Neglected.

Family Court, City of New York, New York County.

May 23, 1973.

Norman Redlich, Corp. Counsel, by Karl Zukerman, Sp. Asst. Corp. Counsel by Frank J. Carabetta, Asst. Corp. Counsel, New York City, for petitioner.

Emilio P. [74 Misc.2d 607] Gautier, Manhattan Legal Services Corp., New York City, by Elizabeth Crawford, New York City, of counsel, for respondent mother.

Charles Schinitsky, Brooklyn, by Kay McDonald, Legal Aid Society, New York City, Law Guardian for Child.

DECISION

NANETTE DEMBITZ, Judge:

In this parental neglect and child abuse proceeding under the Family Court Act, the issue is whether a mother's recent and severe maltreatment of her previous child is sufficient basis for a decision that her new-born baby is likely also to suffer from her neglect or abuse.

The Family Court has authority to determine whether a child is in substantial danger of parental neglect or abuse, in order to prevent the possibility of his irremediable damage or destruction before the actual injurious acts come to light (See Family Court Act, sec. 1012(e)(f)). The Family Court Act further provides that 'proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent . . .' (Section 1046(a)(i)).

Respondent's attorney, while recognizing the validity of this provision on admissibility, ¹ challenges the weight attributable to a mother's abuse of one child in a proceeding for the protection of another. ² In view of the recency, repetitiveness, and character of respondent's abuse of her first child, Monique (described in Section I below), the court concludes on the basis of established legal principles that the evidence thereof is sufficient to prove a Prima facie case of a substantial risk to her second infant, Kenya (Section II, below). Accordingly, absent any refutation by respondent, the court enters a 'finding of fact' (Family Court Act, sec. 1044), asserts authority over respondent-mother in relation to Kenya, continues Kenya in respondent's custody while a social investigation of her care is undertaken, and refers respondent to the Court Clinic for psychotherapy in accordance with the Court psychiatrist's previous recommendation. ³

I. EVIDENCE AS TO PRIOR CHILD

At the time of respondent-mother's first hearing on allegations of child neglect and abuse, held on May 4, 1972, she had only one child, Monique. The uncontroverted and entirely convincing evidence at that trial, established that in the period from January 1971, when respondent-mother assumed Monique's care, until May 1971, when Monique was removed to Metropolitan Hospital due to a teacher's observation of injuries inflicted by respondent-mother, respondent beat Monique brutally and daily, causing serious lesions and bruises over her entire body, including a severely blackened and swollen eye (caused by respondent hitting her in the eye with a belt buckle). According to a psychiatric examination, Monique suffered acute psychic distress as well as physical, from respondent's abuse. The proof further established that Monique was in no way a difficult child to control but on the contrary was amenable, attractive and appealing, and that respondent's reply to questions as to her abuse of Monique was that Monique was her child and she could therefore treat her as she pleased.

The child now in controversy, Kenya, was born in August, 1972, 3 1/2 months after the hearing as to respondent's abuse of her first child (who had been placed with her grandparents after her discharge from the hospital). From birth Kenya was in the care of respondent-mother; and at the hearing in regard to her when she was seven months old, there was no evidence that either neglect or abuse had occurred.

Since the only basis for the Court's authority or investigation as to Kenya is the respondent's abuse of her prior child, her attorney's contention that such abuse is insufficient to establish a Prima facie case herein, means that it must be totally ignored in relation to Keyna--that there can be no intervention, concern or inquiry with respect to respondent's care of Kenya. The Court's rejection of respondent's argument is supported by general principles of evidence and procedure as well as by policy considerations.

II. LEGAL PRINCIPLES SUPPORTING DETERMINATION

In a variety of civil proceedings, 'conditions once shown to exist are presumed to continue . . .' Larsen Baking Co., Inc. v. City of New York, 30 A.D.2d 400, 406, 292 N.Y.S.2d 145, 152 (2nd Dept., affd. 24 N.Y.2d 1036, 303 N.Y.S.2d 80, 250 N.E.2d 356). Applying this customary presumption of continuance to individual conduct, 'reasonable cause to believe that the defendant will continue the wrong . . . may, of course, be inferred from the nature and character of the wrong . . .' Jacquard Knitting Machine Co. v. Ordnance Gauge Co., 108 F.Supp. 59, 68 (E.D.Pa., 1952). And see for a leading exposition of this doctrine, Swift & Co. v. United States, 276 U.S. 311, 48 S.Ct. 311, 72 L.Ed. 587. The presumption of the likelihood of respondent's again engaging in child-abuse, is a necessary inference from the nature of her acts and her expressed attitude towards them.

Respondent-mother's severe and unremitting abuse of Monique was indicative of harshly punitive, unrestrained impulses; of the use of a defenseless child as outlet and victim. The abuse was recent and even more recent was respondent's attitude of possessory omnipotence: 'I can treat my child as I wish.' The common-sense view that there is a likelihood of respondent's visiting this attitude and the resultant abuse on another child, is corroborated by research in the field of child abuse. For, studies indicate that child abuse is generally the result of a deep-seated, pervasive psychological conflict, ⁴ and thus is likely to be inflicted on another child when the first-abused child is removed from the home. As to the presumption of a continuance of recently manifested psychic difficulties, see Rosario v. New York, 42 Misc.2d 699, 703, 248 N.Y.S.2d 734, 738 (Ct. of Cl.); cf. Carter v. Beckwith, 128 N.Y. 312, 316, 28 N.E. 582; Quarterman v. Quarterman, 179 Misc. 759, 760, 39 N.Y.S.2d 737 (Sup.Ct. N.Y.).

In sum, the presumption of a substantial risk of respondent's abusing Kenya, is valid, for there "a rational connection between the fact proved and the fact presumed." Leary v. United States, 395 U.S. 6, 33, 89 S.Ct. 1532, 1546, 23 L.Ed.2d 57.

Necessarily, and in accordance with customary procedure, respondent bears the burden of coming forward with evidence to refute this presumption of danger if she is to avoid a determination against her. When the courts rely on the presumption of the continuance of a type of conduct, the burden is on the defendant to 'demonstrate that 'there is no reasonable expectation that the wrong will be repeated.' The burden is a...