Dutchess County Department of Social Services v. Bertha C.

130 Misc. 2d 1043, 498 N.Y.S.2d 960, 1986 N.Y. Misc. LEXIS 2461
CourtNew York City Family Court
DecidedJanuary 24, 1986
StatusPublished
Cited by11 cases

This text of 130 Misc. 2d 1043 (Dutchess County Department of Social Services v. Bertha C.) is published on Counsel Stack Legal Research, covering New York City Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dutchess County Department of Social Services v. Bertha C., 130 Misc. 2d 1043, 498 N.Y.S.2d 960, 1986 N.Y. Misc. LEXIS 2461 (N.Y. Super. Ct. 1986).

Opinion

OPINION OF THE COURT

George D. Marlow, J.

A petition was filed with this court by the Dutchess County Department of Social Services (hereinafter DSS) pursuant to Family Court Act article 10 alleging that respondent committed and allowed the commission of various acts of child abuse upon her four-year-old daughter, Janet. The petition avers, inter alia, that respondent had sexual contact with her daughter. Petitioner also claims she allowed more than one of her own boyfriends to have sexual contact with Janet, and that respondent and her boyfriends engaged in various sexual acts in the child’s presence and view.

This proceeding follows a report of suspected child abuse given to petitioner on November 5, 1984. That report was [1044]*1044based on a statement of respondent’s daughter made to one of her playmates that she had been "licking the privates” of her mother’s boyfriends. Thereafter, a DSS caseworker obtained respondent’s permission to interview the child. However, that interview was terminated at respondent’s insistence after a mere 10 minutes. Subsequent attempts to arrange a meeting with the child, with the cooperation of respondent, met with no success. Respondent simply refused to allow the child to discuss the matter outside of her presence. Nevertheless, with the concurrence of the child’s natural father, who is divorced from respondent, the child was interviewed by Rene Finn of the Beacon Police Department and Margaret Shuhala, a caseworker in the Dutchess County Child Protective Services Unit. During the course of that December 16, 1984 interview, the child, aided by anatomically correct dolls, indicated that she had been sexually and otherwise abused by her mother and by men in her mother’s presence. A report of that interview and the testimony describing it revealed no telling, physical evidence of the alleged abusive acts.

However, on the basis of the latter interview this proceeding was brought, the child, was removed from respondent and she was placed with her father and his present wife. That placement continues following a hearing held pursuant to Family Court Act § 1028.

The subsequent fact-finding hearing was held over the course of several days. This decision addresses respondent’s motion to dismiss at the conclusion of petitioner’s direct case.

It is initially noted that the child’s descriptions of the various sexual acts, as relayed to the court by petitioner’s witnesses, were clear, detailed and specific. If properly corroborated (Family Ct Act § 1046), the conduct alleged unquestionably constituted gross forms of sexual abuse of the child by and with the consent of respondent. Therefore, the most difficult issue confronting this court at the conclusion of petitioner’s direct case concerns the legal sufficiency of the evidence offered to corroborate the child’s hearsay statements.

Family Court Act § 1046 (a) (vi), in pertinent part, provides that in any hearing under article 10: "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. Any other evidence tending to support the reliability of the previous statements, including, but not lim[1045]*1045ited 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 fact-finding of abuse or neglect. ” (Emphasis added.)

In an attempt to ease the evidentiary requirements in child abuse and neglect cases, the last sentences of the quoted statute were added by our State Legislature during the pendency of the instant matter. The new evidentiary standard was made effective immediately and applicable to pending proceedings. (See, L 1985, ch 724.)

In the memorandum submitted in support of the amendment by its sponsor, Senator Mary B. Goodhue, the purpose and intent of the legislation are abundantly clear. Prior to the amendment, the courts took differing positions on the degree and quality of corroboration needed as proof in neglect and child abuse proceedings. In cases such as Matter of Margaret W. (83 AD2d 557); Matter of Nicole S. (123 Misc 2d 364, 368); Matter of Lydia K. (123 Misc 2d 41); and Matter of Cindy B. (122 Misc 2d 395), the courts required a high degree of corroborative proof to sustain an abuse or neglect petition. The standard judicially adopted approached that which is utilized in criminal prosecutions wherein each element of the offensive conduct as well as the identity of the perpetrator must be adequately and separately proven beyond a reasonable doubt. This was so despite Family Court Act § 1012, which specifically made the criminal standard of corroboration inapplicable to neglect and abuse proceedings.

Pointing to the need to afford courts an opportunity to attempt to deal with various forms of child abuse and neglect, to give aid to victimized children and to prevent a recurrence of offensive conduct, the new legislation was intended to adopt the less stringent common-law standard of corroboration. That standard, as defined in Black’s Law Dictionary 311 (5th ed) refers to corroborating evidence as "evidence supplementary to that already given and tending to strengthen and confirm it. Additional evidence of a different character to the same point.”

Even prior to the enactment of the foregoing amendment, its philosophy was adopted in Matter of Tara H. (129 Misc 2d 508 [Fam Ct, Westchester County]). There, the court referred to the common-law definition of corroboration contained in Ballentine’s Law Dictionary 276 (3d ed) which speaks of corroboration in terms of "evidence of such substantial facts [1046]*1046and circumstances as will produce in a sound and prudently cautious mind a confident conclusion that the testimony of the complainant is true in all essentials * * * additional evidence of a different character to confirm the same point * * * such as tends to show its truth, or the probability of its truth.”

The opinion in Tara H. (supra, p 514), points out that corroboration commonly manifests itself in the form of "apparently inflicted injuries [a form of res ipsa] admissions of a parent, even though retracted * * * and the sworn testimony of others (adults and children)”. The court went on to review the great difficulty normally encountered in child abuse cases in which there may be no emotionally uninvolved or willing eyewitness to the events, and little or no physical evidence of trauma when the abusive acts are later disclosed. The only real or meaningful evidence of the tragic events may be the out-of-court statements of the young victim, whose words, no matter how convincing, would be insufficient if some reasonably reliable and constitutionally acceptable means of corroboration were not found, approved and utilized.

Among the factors given sufficient corroborative weight by Judge Miller in Tara H. (supra) was the testimony of the individual who conducted the "validation interview.” The testimony of this trained and experienced expert alluded to various actions and reactions which had been observed concerning the subject child which were consistent with the forms of response usually associated with sexually abused children. Among the factors considered significant by the expert in Tara H.

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Bluebook (online)
130 Misc. 2d 1043, 498 N.Y.S.2d 960, 1986 N.Y. Misc. LEXIS 2461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dutchess-county-department-of-social-services-v-bertha-c-nycfamct-1986.