T.G., Matter of

• Decision Date: 21 May 1985
• Parties: In the Matter of T.G. A child under the Age of Sixteen Years alleged to be Abused and Neglected by M.G. and M.G. Respondents.
• Court: New York Family Court

Page 901

491 N.Y.S.2d 901

128 Misc.2d 914

In the Matter of T.G.

A child under the Age of Sixteen Years alleged to be Abused

and Neglected by M.G. and M.G. Respondents.

Family Court, Dutchess County.

May 21, 1985.

Peter McGinnis for Dutchess County Department of Social Services.

Martin Prinner, Poughkeepsie, for respondents.

Michael Kranis, Poughkeepsie, Law Guardian.

GEORGE D. MARLOW, Judge.

This opinion follows a trial involving allegations of a most unseemly pattern of unciviled and perverted sexual acts between adults and their child and step-children, ages one and five. Petitioner, Dutchess County Department of Social Services, seeks a determination finding T.G. born October 21, 1982, to be an abused child pursuant to Section 1012(e) of the Family Court Act. T.G. is the natural son of respondents.

The petition, which was originated after a complaint was forwarded to petitioner by Effingham County, Georgia, Department of Family and Children's Services, inter alia, alleged that, after a trial in Georgia, there had been an adjudication on August 2, 1984 in which a finding of sexual abuse was made against respondents with respect to the twin children (Hans and Christina) of respondent, M.G., born March 6, 1970 during her prior marriage.

The court notes that the Georgia determination was made in the context of a proceeding, commenced by the natural father of the two abused twin children, to terminate M.G.'s rights of visitation with them. The entire trial transcript of the Georgia proceeding, together with various exhibits, was introduced into evidence herein by consent.

FACTS

The allegations of sexual abuse upon which the instant application is based center around events which took place in the State of Georgia prior to respondents' relocation to the State of New York. The transcript of the Georgia hearing reveals This court's assessment of the entire case includes a finding that these most sordid descriptions of the sexual "games" were not made-up tales. The truth of these statements is readily apparent because they evince proper orientation of the senses of sight, taste, and feeling, and the child's reaction and description of pain and fear are appropriate to the conduct simultaneously experienced. Moreover, none of the statements of the children was disproved. In fact, as had been indicated by Christina, pornographic films were later found by the police at the home of respondents' alleged participant-neighbors.

                that respondents, together with certain of their friends, relatives, and neighbors, engaged in various sexual activities with the children which were characterized as "games".  These "games", in which the twins and allegedly T.G. directly and actively participated, involved a wide variety of perverted and grotesque conduct, including acts of oral and anal sodomy, copulation, masturbation, and genital fondling.  The children came to call intimate parts of their anatomy by various nicknames, and they came to view these orgies in which they participated as acceptable forms of behavior.  Part of the basis for the findings here and in Georgia that respondents sexually abused the twins, is the nature and detail of the consistent descriptions offered by the twins at a time when they were about to become a mere five years old.  Christina fluently detailed and described how respondents each placed their mouths on her vagina, how Mr. G. ate ice cream from her vagina with a spoon, and how two neighbors, Christina called Big Jack and Big Jason, would engage in masturbation and how one would put his penis into or against her vagina from the rear as she stood on her knees whereupon one of them would ingest the "stuff out".  She also described how respondent, Mr. G., inserted a flower into her vagina and ate it, and how she also "rode his horse". 1  She also revealed that a man licked her vagina while she would lie on her back.  She recalled that baby T.G. cried when she and others "sucked on him," and that respondents participated.  She stated that she became frightened when big boys sat on her face.  She also asked why it was that her mother tasted "salty" and stated that when the ice cream was inserted in her vagina it felt cold.  Much of this was corroborated by Hans
                

While the medical corroboration was very slight, the overwhelming opinion of those who spoke with, tested, or otherwise examined the children, including the court, was that the detail and consistency of their stories about the "games" they were made to play in which their younger brother T.G. was included, were not of a character suggesting that the children's versions of these activities were either induced, contrived, or imagined.

Respondents completely denied all of the allegations of abuse, and produced professional opinion testimony which this court rejects as evasive and without adequate factual basis.

STANDARD OF PROOF

Counsel for respondents has argued that the evidence submitted in support of petitioner's case is inadequate when measured against any standard of proof. Furthermore, counsel suggests that petitioner has the burden of sustaining its case by clear and convincing evidence rather than by the preponderance standard set forth in Family Court Act Section 1046 (Subd. [b] ). Reliance for that proposition is placed primarily on Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599; Matter of Christina NN, 98 A.D.2d 894, 896, 470 N.Y.S.2d 882; and Matter of Christine H., 114 Misc.2d 475, 451 N.Y.S.2d 983.

The Santosky holding involved a proceeding for a permanent termination of parental rights based upon abuse. That court outlined a three pronged test to determine whether the evidentiary standard adopted by a state met minimal constitutional due process requirements. That test involves a balancing of three factors: "the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing In a detailed analysis of the foregoing test in the context of a New York child abuse proceeding, the court in Matter of Christine H., supra, concluded that the present statutory burden established in Subdivision (b) of Section 1046 of the Family Court Act was inadequate to meet minimal due process requirements under Santosky. That court felt that the right to avoid the stigma of a child abuse determination, the potential for criminal prosecution and the potential for permanent termination of parental rights together create a significant private interest. That court also pointed to the real potential for error in proceedings of this type, where heavy reliance is placed upon out of court hearsay statements of infants and in which the determinations are, in a sense, "calculated gambles based on careful but highly subjective predictions" (Matter of Christine H., supra, 114 Misc.2d at p. 481, 451 N.Y.S.2d 983). Finally, the court concluded that the governmental interest in utilizing the less stringent preponderance standard for both neglect and abuse cases was minimal.

governmental interests supporting use of the challenged procedure" (Santosky v. Kramer, supra, 455 U.S. at p. 754, 102 S.Ct. at p. 1395; see, also, Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323; Matthew v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18).

While this court appreciates the concern which the Christine H. court exhibited in protecting the rights of the parents involved, this court most respectfully disagrees with the emphasis of that concern. Although it must be acknowledged that mistakes will inevitably be made--and this court does not minimize either the potential for error or the harm therefrom--parents, not defenseless children, must shoulder the burden of possible human imperfection. This court and its child protective procedures offer children their best and only protection. If a measure of gambling is unavoidably involved in these proceedings, it is preferable that the odds be with, rather than against, innocent children.

The design of Article 10 proceedings is to intervene on behalf of a child who is incapable of protecting himself, and to aid adults to better understand and carry out their roles as parents (See e.g. Family Court Act Sections 1011, 1053, 1055, Subd. [c] ). This court does not believe that the remedies available in these proceedings are nearly as intrusive as those in a permanent termination proceeding. (See, also Matter of Simpson, 126 Misc.2d 162, 165-168, 481 N.Y.S.2d 293). That distinction has been noted and suggested as an appropriate rationale for a continued adherance to the preponderance standard in neglect and abuse cases, not involving permanent termination of parental rights (Matter of Linda C., 86 A.D.2d 356, 357, 451 N.Y.S.2d 268). As for the potential for criminal prosecution against parents, that is not an adequate reason to increase the standard of proof in an Article 10 proceeding. The two proceedings operate independently of each other, and neither grand juries, criminal courts, nor prosecutors are bound or legally influenced by the results of Family Court determinations.

In applying the three pronged Santosky test, the Linda C. court gave considerable emphasis to the private interests of children when comparing them to the rights of their parents. (Linda C., supra, 86 A.D.2d p. 359, 451 N.Y.S.2d 268). As for its attitude toward the risk of error in favor of children, that court found the alternative risk in child abuse cases to approach a "level of absolute abhorrence" (Id., at 360, 451 N.Y.S.2d 268). Finally, the court in Linda C. viewed the State's paramount interest in child protective proceedings to be the preservation of family bonds. It thus found that the application of a stricter standard of proof in these matters would frustrate the state's ability to effectively keep the family unit intact (Id., at 361, 451 N.Y.S.2d 268). See, also Matter of Tammie Z., 105 A.D.2d 463, 464, 480 N.Y.S.2d 786...