Joli M., Matter of
| Decision Date | 20 May 1986 |
| Citation | 131 Misc.2d 1088,502 N.Y.S.2d 653 |
| Court | New York Family Court |
Frederick A.O. Schwarz, Jr., Corp. Counsel by Thomas W. Bergdall, Sp. Asst. Corp. Counsel (Alan Beckoff, of counsel) Brooklyn, for Com'r of Social Services of City of New York.
David H. Weiss, Elmont, for respondent.
Lenore Gittis, Legal Aid Society (Rhea G. Friedman, of counsel) Brooklyn, law guardian.
Decision
This court holds that in a sex abuse proceeding under Article 10 of the Family Court Act, the corroboration requirement in FCA section 1046(a)(vi) is satisfied when an eleven year old child's out-of-court statements naming her father as the abuser are corroborated by proof of the child's pregnancy and subsequent abortion, and that there is no additional requirement of independent proof corroborating the identity of the father as the specific perpetrator.
The respondent is before this court charged with sexually abusing the child, Joli. The petition alleges that the respondent father, Antonio M., had abused the child (then between the ages of ten and eleven years old) by having forcible sexual intercourse with her during a period of more than one year. As a consequence, the child became pregnant. The father denied these allegations. A fact finding hearing was held pursuant to Article 10 of the Family Court Act.
The basic facts as determined at trial are as follows: On July 30, 1985, the child upon her admission to Long Island College Hospital was interviewed by a caseworker from the Department of Social Services. The caseworker testified that Joli was very upset and preferred to write a statement as to what had occurred. The child stated that her father had forced her to have sexual intercourse with him for the past year. If she protested she was beaten. Joli further stated that her father told her not to tell anyone. The caseworker further testified that she interviewed the child a second time on the day of discharge. Joli's second statement was entirely consistent with her prior written statement.
The other primary evidence introduced by the petitioner consisted of certified medical records from Long Island College Hospital. The medical records indicated that Joli was admitted to the hospital on July 30, 1985 with a diagnosis of uterine pregnancy. Additionally, a first trimester therapeutic abortion was performed on August 3, 1985.
The respondent chose not to testify and rested without presenting any direct case.
Family Court Act section 1046(a)(vi) provides in part that "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 ...".
What constitutes sufficient corroboration has long been at issue in child protective proceedings. Family Court Act section 1012(e)(iii) specifically provides that the corroboration requirements of the penal law relating to sex offenses ("... Establish that an attempt was made to engage the victim in sexual intercourse, deviate sexual intercourse, or sexual contact, as the case may be, at the time of occurrence; and connect the defendant with the commission of the offense or attempted offense." 2 ) shall not apply to child protective proceedings. (emphasis added).
Notwithstanding the mandate of § 1012(e)(iii), family courts statewide have on occasion incorrectly applied the criminal standard of corroboration, requiring independent proof of the occurrence as well as the identity of the perpetrator, in Article 10 proceedings. The result of this misapplication of the criminal corroboration standard has been the dismissal, in those instances, of sex abuse cases and cases of physical neglect and abuse. See Matter of Nicole S., 123 Misc.2d 364, 474 N.Y.S.2d 212, 215, in which the court required "the corroboration extend to all material elements of the petition ..." including both the identity of the perpetrator and the manner in which the injuries were sustained. See also Matter of Lydia K., 123 Misc.2d 41, 472 N.Y.S.2d 576, in which the court stated that the corroboration by medical evidence was not enough and that corroboration must connect the respondent to the event.
The misuse of the penal law standard of corroboration, in contravention of § 1012, works to undermine the express purpose of an Article 10 proceeding, that being to protect children from being injured or mistreated (FCA § 1011).
The New York State Legislature, recognizing the need for clarification of the nature and the extent of the corroboration necessary in a child protective proceeding, added the following language to § 1046(a)(vi) of the Family Court Act at its 1985-86 regular session:
Any other evidence tending to support the reliability of the previous statements including but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration. The testimony of the child shall not be necessary to make a finding of abuse or neglect.
As stated in its supporting memorandum, the Legislature's purpose in amending § 1046(a)(vi) was to clarify, but not change, existing law necessitated by the erroneous applicati of the criminal standard of corroboration in Article 10 proceedings.
The trend in recent decisions has been to reject the criminal standard of corroboration in Article 10 proceedings. In People v. Smith, 62 N.Y.2d 306, 315, 476 N.Y.S.2d 797, 465 N.E.2d 336, it was held that Article 10 proceedings are civil in nature, the purpose being to protect children rather than having the punitive purpose of a criminal trial. Additionally, in Matter of Cindy JJ., 105 A.D.2d 189, 484 N.Y.S.2d 249, the criminal standard of corroboration was held to be inapplicable under Family Court Act § 1046(a)(vi), the court noting that the "express purpose" of an Article 10 proceeding is the protection of children. See also Matter of Michael G., 129 Misc.2d 186, 492 N.Y.S.2d 993, rejecting criminal standard of corroboration; Matter of Michelle H., N.Y.L.J., Oct. 30, 1984, p. 15, col. 1.
Having determined that the criminal standard of corroboration is inappropriate in Family Court Act Article 10 proceedings, the court must decide what type of corroboration standard would be applicable in child protective proceedings. In such proceedings, corroboration is required for the essential purpose of establishing the trustworthiness of the previous out of court statements. In Matter of Tara H., 129 Misc.2d 508, 494 N.Y.S.2d 953, 960 the court in deciding what constitutes sufficient corroboration held that "... additional evidence of...
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Nicole V., Matter of
...appeal dismissed 66 N.Y.2d 1035, 499 N.Y.S.2d 1030, 489 N.E.2d 1303) or evidence that the child had become pregnant ( Matter of Joli M., 131 Misc.2d 1088, 502 N.Y.S.2d 653). Of course, Family Court Judges presented with the issue have considerable discretion to decide whether the child's ou......
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Nicole V., Matter of
...child's out-of-court statements of abuse. Matter of Tara H., 129 Misc.2d 508, 512-513, 494 N.Y.S.2d 953; see also, Matter of Joli M., 131 Misc.2d 1088, 502 N.Y.S.2d 653 [pregnancy]. In a Third Department case, proof of sexual abuse of an older daughter, supported by the father's admissions,......
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Ryan D., Matter of
...some of the proof which has been present in other cases where corroboration has been found, i.e., medical proof (Matter of Joli M., 131 Misc.2d 1088, 502 N.Y.S.2d 653; Matter of Tara H., 129 Misc.2d 508, 512-513, 494 N.Y.S.2d 953); respondent's admissions (Matter of Tantalyn T.T., 115 A.D.2......
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E.M., Matter of
...statements concerning commission of the act and the identity of the abuser". Id. at 105, 510 N.Y.S.2d 567. See also Matter of Joli M., 131 Misc.2d 1088, 502 N.Y.S.2d 653; Matter of Tara H., 129 Misc.2d 508, 494 N.Y.S.2d With the overriding issue of defining the breadth of the corroboration ......