In re Fatima M.

16 A.D.3d 263, 793 N.Y.S.2d 329, 2005 N.Y. App. Div. LEXIS 3133
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 24, 2005
StatusPublished
Cited by11 cases

This text of 16 A.D.3d 263 (In re Fatima M.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Fatima M., 16 A.D.3d 263, 793 N.Y.S.2d 329, 2005 N.Y. App. Div. LEXIS 3133 (N.Y. Ct. App. 2005).

Opinion

Orders, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about December 6, 2002, which, inter alia, found two of the children abused and all five children neglected, unanimously reversed, on the law and the facts, without costs, and the matter remitted for a new fact-finding hearing.

Respondents Rashad M. and Bernadine M. are married and have three daughters and two sons.1 In 2000, the Administration for Children’s Services (ACS or the Agency) received information that the M. parents were using drugs, and began an investigation of the home. After Mr. M.’s toxicology report came back positive for cocaine, he was referred to a drug treatment program. The Agency continued to conduct biweekly home visits, and for a period of time it appeared that there were no further problems. However, in April 2001, one of the daughters, Aquellah, told an employee at her school that her father was touching her inappropriately.

[264]*264As a result, on April 27, 2001, ACS filed a petition in Family Court alleging that the five children were abused or neglected under article 10 of the Family Court Act. The petition alleged that respondent father Rashad M. had sexually abused his daughter Aquellah for many years, and that respondent mother Bernadine M. knew or should have known about the abuse, failed to protect the children and suffered from a mental illness2 which prevented her from providing her children with adequate supervision. The children were removed from the home pending determination of the merits of these allegations. On April 27, 2001, the court ordered that all the attorneys be notified prior to any evaluation of the child Aquellah, and that all interviews be videotaped. A fact-finding hearing was conducted between September 10, 2001 and December 6, 2002.

Petitioner ACS’s first witness was Elizabeth Hittenmark, Director of Health and Family Services for the Family Academy.3 Hittenmark testified that in late January 2001 Aquellah came to school with bandages on her arm which covered cuts. She testified that when asked about the injuries, Aquellah told her that she had been cutting her wrist, that she was unhappy at home, and that the problems included her parents selling drugs from their apartment and getting high in the home. Hittenmark also said that in April 2001 Aquellah told her that her father had been touching her inappropriately since she was about 10 years old and that she wanted it to stop. She further testified that Aquellah said that her father was having sex with her, that he told her she was going to be a stand-in for her mother, and that she wanted to die because of the things that were going on in her home.

On cross-examination, Hittenmark told the court that Aquellah had accused a neighbor named Andre of raping her. She also testified that Aquellah had written a number of letters, and that in one of the letters the child described having sexual contact with a teenage boy named J.B.

Petitioner’s next witness was Ashton Evans, a caseworker for ACS who testified that he spoke with Aquellah on January 30, 2001 because the child had brought a razor into school. He averred that Aquellah admitted cutting her wrist to try to kill herself, but she stated that she went “slightly over her wrist,” [265]*265because “she knew if she did it any deeper she knew that she would hurt herself.” He said that Aquellah acted out at school and that she sometimes cursed at Evans. Evans testified that on April 26, 2001, he made a visit to the home with a coworker and explained the allegations of sexual abuse to respondent father. Rashad M., he said, denied abusing Aquellah, asserted he didn’t know who was saying these things, and that he couldn’t believe that this was happening. Evans reported that he also spoke to respondents’ eldest child Fatima M., who denied ever being touched inappropriately by her father. He also testified that he spoke to the two younger boys, who said that they had never seen anyone in the home touch anyone else in a sexual way. Evans said he explained to all of the children that they had to be removed from the home.

On cross-examination, Evans testified that the first time he went to respondents’ home was in November 2000, because of allegations that the parents were selling and using drugs. He stated that since November of 2000, he made visits to the home every two weeks, that he had referred Rashad M. to a drug treatment program in January 2001, and that on his visits, it appeared that the parents were cooperative, that the house was clean, and that the children seemed well cared for and happy. His notes from a February 1, 2001 home visit indicated that the children were not fearful and that the only child who appeared troubled was Aquellah. Evans stated that on March 16, 2001, he interviewed the twins in the home, and that they both said they were happy there and had no complaints. He also testified that on March 16 Aquellah told him that the allegations she had made against her father were not true. He said that after the children were removed from their parents’ home, they were placed with their maternal aunt but were subsequently removed because Aquellah alleged that her aunt’s boyfriend had molested her. Evans also testified that Aquellah had been brought to various hospitals because she was having suicidal ideation.

Petitioner’s next witness was Maria Castro, a social worker at the Family Academy, Aquellah’s school. Castro worked with Aquellah M. from January 2001 to June 2001. Hittenmark had referred Aquellah to Castro because Aquellah was having behavioral problems, and the school felt she needed to talk to someone. Castro testified that she observed cuts on the child’s wrists on two occasions and that Aquellah had been admitted to St. Vincent’s Hospital in February 2001.

Castro also stated that Aquellah told her that a man named Andre had pulled her inside a building, had exposed himself to her, and had fondled her. Further, Castro related that on April [266]*26618, 2001, she went with Aquellah to a police station to try to identify Andre. She stated that Aquellah made the identification and that Andre was arrested. Castro testified that Aquellah told her that her father was very grateful for Castro’s help and that he wanted to buy her flowers. Castro said that she had responded: “I told her that was not necessary. That I was just doing my job. That I was glad I could be there for her. Umm— and later on I said, you know, in the conversation, I said to her that I felt that somehow I was missing the boat but I felt that she was in a lot of pain and I wasn’t able to help her because she was—I felt she still wanted to hurt herself. And I asked her was there anybody who is trying to hurt you or doing anything to you. And then I asked her—has your father ever done anything that made you feel uncomfortable?” She said that Aquellah then told her that her father had been touching her since she was 10 years old, and that he had been making her touch his private parts. Aquellah, Castro said, stated that her father had sexual intercourse with her one time when she was 11 years old. Castro said that when Aquellah asked her whether she, Castro, was going to tell anyone, she answered that she was required to do so, and Aquellah stated “umm—it’s o.k. Ms. Maria. Umm—umm—I’m—I’m the strong one. He will stop. He won’t do it again.” After their session, Castro notified Hittenmark and Evans about the allegation of abuse. On cross-examination, Castro was asked whether she had determined that Rashad M. was abusing Aquellah before she asked the child the question.

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Cite This Page — Counsel Stack

Bluebook (online)
16 A.D.3d 263, 793 N.Y.S.2d 329, 2005 N.Y. App. Div. LEXIS 3133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fatima-m-nyappdiv-2005.