Michael G, Matter of

• Citation: 129 Misc.2d 186,492 N.Y.S.2d 993
• Parties: In the Matter of MICHAEL G a Child Under 18 Years of Age Alleged to be Abused by Michael G, Respondent.
• Decision Date: 24 July 1985
• Court: New York Family Court

Page 993

492 N.Y.S.2d 993

129 Misc.2d 186

In the Matter of MICHAEL G a Child Under 18 Years of Age

Alleged to be Abused by Michael G, Respondent.

Family Court, Westchester County.

July 24, 1985.

James M. Robertson, Asst. County Atty., for petitioner, Department of Social Services.

Andrew Henry Vachss, New York City, Law Guardian for child.

Roger Milch, White Plains, for respondent.

DECISION & ORDER

SONDRA MILLER, Judge:

The Department of Social Services filed a petition, alleging a father's sexual abuse of his three and one-half year old son. This proceeding raises the issue of the nature and quantum of evidence required to corroborate the child's out of court statements, pursuant to Family Court Act Section 1046(a)(vi), which provides:

previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated shall be sufficient to make a fact-finding of abuse or neglect ... (emphasis supplied).

No definition of corroboration in the context of Article 10 is provided by statute. New York courts have addressed the issue on a case-by-case basis.

After a lengthy hearing, this court finds that the child's out-of-court statements have been corroborated in sufficient quantum to sustain the petition.

The issues of fact are: 1) Has the child been sexually abused? 2) Is respondent father the perpetrator?

The issues of law are: 1) What constitutes corroboration under Article 10? 2) Has a sufficient quantum of corroboration been presented to sustain the petition?

Mikey's grandmother, a nurse, testified to his bizarre sexual conduct. He showed a sudden fear of men and sexually aggressive behavior toward other children. He awoke from nightmares crying for his father to stop hurting him. She further testified that when she examined his anus, it looked like "a piece of raw meat".

The child's pediatrician testified that he twice found evidence of irritation on Michael's penis and rectum. He testified that this condition might have been caused by attempted penetration or by other factors including constipation.

A caseworker testified that in an interview using anatomically correct dolls, Mikey placed the dolls face to face, rolled the baby doll's penis and hit the daddy doll's penis. He became very excited, spread the baby doll's legs and told the interviewer that "Daddy's penis got big" and that they "played games".

A therapist (MSW) selected by the Law Guardian as an expert in intrafamilial child sex abuse was found qualified without objection. She had served as a consultant for the Federal Bureau of Investigation, validating over eighty-six cases of child sex abuse. She had also interviewed over five thousand victims of sex abuse since 1975, consulting for various New York City agencies. Pretending he was his father and a baby doll was himself, Mikey kissed Mikey's mother (testifying for the respondent) confirmed the child's sudden fear of men and his nightmares. On one occasion, he woke up crying, "I don't want to. You're hurting me". She stated that respondent had told her that he had been raped at fourteen. Since leaving the marital residence Mikey no longer suffered from nightmares nor defecated in his clothing.

the doll, removed its clothing, put it on his lap, and whispered to it. He put the baby and daddy dolls in bed and said "Daddy hurts him", indicating the doll's bottom as where it hurt. The child said he had scary dreams, refusing to elaborate. Based upon her observations of Mikey's behavior, doll play, agitated affect and statements identifying his father, the therapist found that Mikey exhibited "intrafamilial child sex abuse syndrome", concluding that he had been sexually abused and that the father was the perpetrator. She saw the child on several other occasions and did not change her opinion.

The respondent confirmed the child's fear of men and nightmares, saying that Mikey would awaken thrashing his arms about and seeming to fight someone off. Respondent did not deny that he had been raped as a child.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The court finds Respondent committed Sexual Abuse in the First Degree pursuant to Penal Law Section 130.65; or in the alternative, that he neglected his child by failing to exercise a minimum degree of care, causing the child physical and emotional impairment. These findings are based on a standard of clear and convincing evidence (notwithstanding the statutory requirement of a mere preponderence) Family Court Act Section 1046(b).

This conclusion is based upon the application of a definition of corroboration, which includes as corroboration: all evidence other than the child's out of court statements tending to prove the child was sexually abused and respondent was the perpetrator.

DEFINITION JUSTIFIED

The legislature provided for admission of out of court statements, normally excluded as hearsay in child protective proceedings, because of the difficulty in proving child abuse and neglect. The victims are often too young or frightened to testify. The experience of testifying against a family member is traumatic. There are rarely witnesses to child abuse. Perpetrators are unlikely to confess.

The legislature required corroboration of such statements because of their inherent weakness, as hearsay. Since a child's testimony standing alone is sufficient to sustain a finding of sexual abuse even in criminal court (Penal Law Section 130.16, modified effective November 1, 1984 to eliminate corroboration requirement), the corroboration requirement of Family Court Act 1046(a)(vi) is clearly not based upon a distrust of the child's statement because it was made by the child, but simply because it is hearsay.

The legislature required no particular kind of corroboration, merely that corroboration be provided. Logically, all evidence tending to prove that the act alleged by the child in his out-of-court statements was actually committed, corroborates that statement, as it enhances the reliability of the statement itself.

Although novel to New York, this concept of corroboration has been adopted by the District of Columbia in sex crimes prosecutions involving children.

As a basic principle, it seems clear that corroboration in a case involving an alleged sex offense is any evidence, outside of the complainant's testimony, which has probative value--any evidence which could convince the trier of fact that the crime was committed.

United States v. Terry, 422 F.2d 704, 707 (D.C.Cir.1970).

New York courts, grappling with the issue of corroboration on a case-by-case basis have accepted as corroboration, admissions of a parent (even if retracted), In the Matter Criminal law provides some guidance in defining corroboration, even though the highest standard of proof, "beyond a reasonable doubt" applies to those proceedings. Corroborative evidence "need not prove defendant's guilt to a moral certainty, but need simply harmonize with the victim's testimony in such a manner as to furnish the necessary connection between the defendant and the crime". People v. DeVyver, 89 A.D.2d 745, 747, 453 N.Y.S.2d 915 (3rd Dept.1982). "Corroborating evidence may be circumstantial. It need not be positive and direct ... People v. Dow, 310 N.Y.S.2d 558, 562, 310 N.Y.S.2d 558 (1970).

of Margaret W., 83 A.D.2d 557, 441 N.Y.S.2d 17 (2nd Dept.1981), the sworn testimony of others (adults and children), In the Matter of Hawkins, 76 Misc.2d 738, 351 N.Y.S.2d 574 (Fam.Ct. New York Cty., 1974), medicals, People v. DeBerry, 76 A.D.2d 933, 429 N.Y.S.2d 933 (2nd Dept.1980), the presence of a sexually transmitted disease, Matter of Tara H., New York Law Journal, October 19, 1984 p. 15 (Westchester County Family Court) and validation of the child's complaints by a qualified expert. Matter of Tara H., supra.

The absence of a definition of corroboration, consistent with the purposes of Article 10 is potentially disastrous, as illustrated by the court's dismissal of an abuse petition in Matter of Nicole S., 123 Misc.2d 364, 367-368, 474 N.Y.S.2d 212 (Fam.Ct., Monroe Cty, 1984), where the court held the same standard applicable to corroboration of a child's unsworn testimony in a criminal case should be applied to out-of-court statements admitted in Article 10 proceedings. Statements of a four year old girl that her father kicked her in the stomach, and photographs illustrating the injuries of the child, who had been hospitalized, were admitted in evidence. However, she did not testify and the petition was dismissed, the court noting the child was "fortunately" in foster care.

In Matter of Hawkins, 76 Misc.2d 738, 739-740, 351 N.Y.S.2d 574 (Family Court, N.Y.Cty., 1974), a petition alleging sexual abuse by the father of an eleven year old girl survived dismissal only because her thirteen year old brother courageously testified against his father, describing his father gyrating against his sister with her pants down. Without this sworn testimony, the court indicated the petition would have failed for lack of corroboration.

Article 10, often referred to as a "Children's Bill of Rights", provides special evidentiary rules designed to protect abused and neglected children. The statute reflects the legislative awareness of a potential conflict between children's safety and parent's rights, which it resolved in favor of protecting helpless children while limiting the constitutional due process safeguards normally provided to respondents in civil and criminal proceedings.

Due process rights of respondents preserved in other civil and criminal proceedings have been subordinated by the courts to effectuate the paramount purposes of the statute--that of protecting children. Matter of Michael B., 60 A.D.2d 628, 400 N.Y.S.2d 169 (2nd Dept.1977), Matter of Germaine B., 86 A.D.2d 847, 447 N.Y.S.2d 448 (1st Dept.1982), Matter of Patricia P., 117 Misc.2d 826, 459 N.Y.S.2d 392 (Fam.Ct. Bronx Cty.1983), ...