Glenn G., Matter of
| Decision Date | 04 May 1992 |
| Parties | In the Matter of GLENN G. and Josephine G., Children under the age of eighteen years alleged to be abused by Patsy C.G. Glenn G., Respondents. |
| Court | New York Family Court |
Jose Sosa, Brooklyn, for respondent mother.
David Worth, Brooklyn, for respondent father.
Lenore Gittis, The Legal Aid Soc. New York City by Todd Silverblatt, Law Guardian for the subject children.
Respondent parents in the proceeding before the court are charged with sexually abusing their children--Josephine, born in 1985 and now six years of age, and Glenn, born in 1987 and now almost five years old. The definition of sex abuse in Family Court Act, section 1012(e)(iii), is cross referenced to sections of the Penal Law. Specifically in the instant case, respondent father is charged with having improperly touched the genitals and rectums of both children, conduct which would constitute Sexual Abuse in the Third Degree, a violation of Penal Law section 130.55. Respondent mother is charged with having allowed the abuse, in that the acts occurred in her presence and she failed to protect the children. In addition, both respondents are charged with sexually abusing the children by having taken pornographic photographs This case came to the attention of the authorities on April 12, 1991 when the respondent mother went to the 68th police precinct to seek assistance after an incident of domestic violence. There she was referred to a worker with the Victim Services Agency, Barbara Anselmo. Ms. Anselmo testified that upon arrival respondent mother was pale, shaking, crying and incoherent. After about an hour, respondent mother became calm enough to speak and, in the ensuing discussion, asked if it was normal for a father to grab his children in the groin area, dance naked with them and take photos of them naked. Ms. Anselmo said, "No." After further discussion respondent mother was relocated to a battered women's shelter. The children were medically examined at Bellevue Hospital on April 19, 1991, following which a report of suspected child abuse or maltreatment (hereinafter "2221") was called in by the Bellevue social worker. The Child Welfare Administration (hereinafter "CWA") was already involved, however, as a result of two 2221's it had received on April 18, 1991, relaying allegations made by the father against the mother. Upon investigation those allegations proved to be unfounded.
of the children, a violation of Penal Law section 263.05, "Use of a child in a sexual performance." In the alternative, it is alleged that the children are neglected in that the foregoing conduct constitutes improper supervision of the children by the respondents
The CWA caseworker, Edris Juandoo, interviewed the respondent mother and the children on April 22, 1991. Josephine told the caseworker that the father plays with her and touches her in the "tushie and in the front, in the hole." Respondent mother recounted to the caseworker the same sort of touching she had described to Ms. Anselmo, and she told the caseworker that when she confronted the father about it, he threatened to kill her.
On April 24 Mr. G. met with the caseworker and showed her a batch of photographs of the children, which he alleged the mother had taken. The caseworker observed that in most of the photos the children were half or totally nude. On May 1, 1991 Ms. Juandoo met with the mother at the shelter and questioned her about the pictures. The mother then showed the caseworker a bundle of the same sort of pictures. Respondent mother told the caseworker that the respondent father had taken the pictures and that she had removed them from the apartment on April 25 and April 28 when she went back with a police officer to collect her belongings.
During the hearing each respondent produced a set of photographs which each identified as the pictures they showed to the caseworker. Although neither respondent admitted being present when the most questionable pictures were taken, each testified that the other parent was the only person who could have taken them. Neither respondent has offered any other explanation for the photos, which were taken inside the respondents' apartment. One photograph produced by both respondent parents depicts Glenn, who appears to be between three and four years old, lying on his back on a couch, clad in a shirt and pants. In this photo the child's underwear and jeans are pulled down to the knees, exposing him from waist to mid-thighs. He has an erection, which is conspicuous due to the angle of the photograph.
The court finds that this duplicate photograph of Glenn lying on the couch, constitutes a lewd exhibition of the genitals within the meaning of Penal Law section 263.00(3), and thus violates Penal Law section 263.05. The pose, the camera angle, the studied arrangement of the clothing, and the age of the child in this photo combine to create unmistakable sexual innuendo. The fact that the child's penis is erect brings the picture within a line of cases which have held such depictions of adult males obscene. U.S. v. Wild, 422 F.2d 34 (2nd Cir.1969); People v. Clark, 60 Misc.2d 1073, 304 N.Y.S.2d 326 (Crim.Ct.N.Y.County 1969).
The court further finds that respondent father took the lewd photograph. The child Josephine spontaneously told Dr April Kuchuk, a psychologist who interviewed the child at Bellevue Hospital, that her father would take pictures of her and her brother with their clothes off, and specifically stated that the mother did not. Furthermore, the taking of this photo is consistent with the respondent father's overall approach to the children as sex objects, which will be discussed further below. Accordingly, the court finds the child Glenn to have been sexually abused by the respondent father by reason of the father's having used him in a sexual performance in violation of Penal Law section 263.05.
On April 19, 1991 Josephine was examined at Bellevue Hospital by Dr. Margaret McHugh, a pediatrician with particular expertise in child sexual abuse. Although Dr. McHugh found the child's hymen intact, the fossa navicularis and the posterior fourchette were markedly thin and pale. In addition there was venous congestion around the rectum, indicative of damage to the network of blood vessels underneath the rectal area. Together these findings indicate that there has been trauma to the perianal area due to rubbing or manipulation.
Dr. McHugh testified that a child would not cause this trauma by masturbation, and neither would such thinning of the fourchette be consistent with an accident such as a fall onto a bicycle crossbar or against a bathtub faucet, as those events would cause tearing, rather than thinning, of the tissue. The rubbing could have been done by a hand or an instrument, but the gentle pressure required to apply medicine to a rash would not produce the effect seen here, nor would a child scratching herself to relieve an itch cause it. Although this injury is different from that which would be caused by penetration into the vagina, the doctor testified that it is nonetheless consistent with sex abuse.
Prior to the physical examination, Josephine was also interviewed by a psychologist at Bellevue, Dr. April Kuchuk. The child's affect, coupled with her age-inappropriate knowledge of the adult male penis led Dr. Kuchuk to conclude that her psychological findings as to Josephine were consistent with the child's having been sexually abused.
The respondent mother, called as a witness by the petitioner, extensively described respondent father's sexual abuse of both children. She testified that the father played violent games with the children naked or in underpants and that on numerous occasions while "playing" with the children, Mr. G. would grab them in the crotch. Sometimes while grabbing Josephine's buttocks or groin area, he would say, "This is mine." On one occasion the mother also observed the respondent father licking Josephine's nipples. She also recalled instances when she came into the bedroom and discovered the respondent father manipulating Josephine's vaginal area and a similar instance when he was stroking little Glenn's penis. On these occasions respondent father was naked, and respondent mother observed that he had an erection.
On the basis of the respondent mother's testimony and Josephine's out-of-court statements, which were amply corroborated by the physical findings of Dr. McHugh and the psychological findings of Dr. Kuchuk, the court finds that the respondent father sexually abused both children by touching their intimate parts for the purpose of his sexual gratification.
Respondent mother is charged with sexual abuse, and, in the alternative, neglect, based on her failure to protect the children from the father's conduct described above. She asserts as a defense that she was a battered woman during the period when the abuse was occurring and asks that the charges against herself be dismissed. 1 CWA and the law guardian argue that whether the mother was a battered woman is irrelevant, since they contend that the Family Court Act child protective article is a strict liability statute. The respondent father disputes that the mother was battered. He seeks to portray her as the prime perpetrator of the child abuse, a conclusion the court rejected for the reasons already stated.
The analysis of respondent mother's defense must commence with a preliminary review of the legal responsibility of the passive parent of a child who has been sexually abused. The passive parent is guilty of child abuse when she "allows" the abuse to be inflicted....
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