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On 2 January 2008, the instant action was commenced

On 2 January 2008, the instant action was commenced, when NYCCS filed abuse petitions against respondent-mother.

On 31 December 2007, respondent allegedly allowed the subject child (herein “subject child”) to sleep in her bed, touch her, kiss her on the mouth, insert his finger in her anus, insert his finger in her vagina, and have sexual intercourse with her to the point of ejaculation.

According to respondent, she did not stop the child because she could not believe that her son would do this to her, and she wanted to see how far he would go. The said incident was alleged to be in violation of Penal Law, sexual misconduct, rape in the third degree, rape in the second degree, and sexual abuse in the third degree. In addition, the petitions alleged that respondent failed to provide adequate care and supervision for the children by misusing alcoholic beverages to the extent that she loses control of her actions. Specifically, the petitions alleged that on 30 December 2007, she drank two Corona beers causing her to become intoxicated. In addition, the petitions alleged that the subject child woke up at 3:00 AM on 31 December 2007 in his mother’s bed smelling alcohol because she drank three quarters of a fifth of Johnnie Walker Red on the previous evening. Finally, the petitions alleged that respondent’s other two children are derivatively abused and neglected children by virtue of the abuse of the subject child.

On the day the petitions were filed, the Court granted the request of NYCCS for a remand of all of the children. On 2 January 2008, the subject child was placed at a diagnostic residential center for an evaluation.

Thereafter, respondent requested a Family Court Act hearing seeking the immediate return of her other two children. The court then ordered the temporary release of the two children to respondent-mother on the condition that she cooperate with referrals for a mental health evaluation, individual counseling and parenting skills, as well as NYCCS supervision.

On 29 January 2008, NYCCS moved in the Appellate Division, Second Department for a stay of the aforesaid order pending appeal. The Court in New York City granted an interim stay pending a decision on the motion. On 14 February 2008, the Court granted the motion for a stay pending appeal. Thereafter, by order and decision dated 12 August 2008, the Court reversed the order and remitted, holding that the undisputed evidence, establishing sexual contact between respondent and her son evidenced a deeply flawed understanding of her parental duties and impaired judgment. The Court found that this evidence supported a finding that the two other children were derivatively abused. The Court noted that non-respondent father had indicated a willingness to assume custody in the event that the children were not returned to the mother.
On 31 January 2008, the Court temporarily released the two other children to their non-respondent father under NYCCS supervision. Respondent-mother was granted visitation with the two children to be supervised by non-respondent father or his wife.

On 12 February 2008, the treatment team recommended that the subject child be placed in a Residential Treatment Center. He was not actually transferred to such a facility, however, until 26 June 2008. Thereafter, he was transferred to a group home on 13 April 2009.
Respondent-mother has not visited or communicated with the subject child since the commencement of the proceeding. She does not want any contact. At this point, the subject child no longer wishes to have any contact with his mother. Since the petitions were filed, he has had no contact with his half-siblings or his stepfather. Subject child’s paternal aunt and uncle have agreed to be resources for him. They currently reside in Florida and the ICPC has been submitted. They have repeatedly traveled to New York and Westchester County to visit with their nephew and have been active participants in his treatment. He has also had some contact with a maternal aunt.
On 21 May 2008, the fact-finding hearing began and continued over the course of approximately 22 months on numerous court dates. During the fact-finding hearing, NYCCS called an officer from the 90th precinct, the NYCCS caseworker and the casework supervisor. Respondent-mother called her husband to testify and she also testified on her own behalf.

The Ruling:
Family Court Act defines a sexually abused child as a child less than 18 years of age whose parent or other person legally responsible for his care commits, or allows to be committed an offense against such child defined in article 130 of the Penal Law; or allows, permits or encourages such child to engage in any act described in §§ 230.25, 230.30 and 230.32 of the Penal Law (involving prostitution); or commits incest in the first, second or third degree. Under the Family Court Act, it is unnecessary to allege or prove harm or threatened harm to the child.
Where sexual abuse or forcible touching is alleged, it is necessary to prove that respondent intended to gratify the sexual desire of either party. There is no requirement that actual gratification occurs but only that the touching be for that. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing. Because the question of gratification is a subjective one, this element may be inferred from respondent’s conduct or from the acts themselves.

Here, there was no objective indication that respondent did not consent. While respondent asserts that she did not consent to having sexual relations with her son and that he raped her, neither the applicable law nor the facts adduced at fact-finding support her contention.
The Penal Law defines lack of consent for purposes of a sex offense. It establishes that a lack of consent results from forcible compulsion or incapacity to consent. In addition, the statute provides that where the offense charged is sexual abuse, lack of consent can be established by any circumstances indicating that the victim did not expressly or impliedly acquiesce in the actor’s conduct. Finally, where the offense charged is rape in the third degree, lack of consent can be established by any circumstances indicating that the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent under all the circumstances.

The court finds that there is no evidence of forcible compulsion, neither evidence of physical force nor express or implied threats exist; that there is no evidence that respondent clearly expressed her non-consent in a way that a reasonable person would have understood; that there is no evidence that respondent acted under duress or coercion; and that respondent-mother abused her son when she engaged in sexual relations with him whether or not the child willingly participated.

The Penal Law makes the forms of sexual relations it enumerates sex offenses when the victim is less than 17 years old. The statute establishes that a person less than 17 years old is incapable of consent. The law considers a child who engages in sexual relations with an adult as victimized, regardless of whether or not she or he actually consents or even initiates the sexual encounter. In other words, the statutory scheme imposes liability on respondent-mother for engaging in sexual relations with her son irrespective of whether or not he willingly participated. The entire rationale of an age of consent is based on the premise that a child who engages in sexual intercourse is victimized regardless of whether he or she sees themselves as a victim.

The Court finds that respondent voluntarily engaged in sexual relations with her son although she had the ability to stop him at any time. Her subjective belief that she did not consent is insufficient, without more, to establish that she did not expressly and impliedly acquiesce in the subject child’s conduct. It is likewise insufficient to show a clear expression of lack of consent that would be understandable to a reasonable person. Moreover, absent expert testimony, her claim that she was in shock and out of sync is manifestly insufficient to establish a defense.

On the Derivative Findings of Neglect against Respondent-Mother for the Remaining Children:
Family Court Act provides that proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of the respondent. Even in the absence of direct evidence of abuse or neglect of the other children, a derivative finding is warranted where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care. Depending on the nature of the underlying abuse or neglect, the court may make a finding of either derivative neglect or derivative abuse. A finding of derivative neglect is warranted where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment and fundamental flaw in respondent’s understanding of the duties of parenthood as to place the non-target children’s physical, mental or emotional condition at substantial risk of becoming impaired. Where, however, the evidence as to the directly abused child demonstrates such impaired parental judgment that it creates a substantial risk of protracted impairment to the non-target children’s physical or emotional health, a finding of derivative abuse is warranted.

Although the statute requires that evidence as to the abuse of one child be considered on the issue of the abuse or neglect of other children in the home, such evidence is not conclusive and does not establish a prima facie case of abuse or neglect as to the other children. The determinative factor remains whether the nature of the underlying misconduct, notably its duration and the circumstances surrounding its commission, evidences such a fundamental flaw in respondent’s understanding of the duties of parenthood that it can reasonably be concluded that the condition still exists.

After considering the aforesaid criteria in light of the facts at bar, the Court finds that there exists a derivative neglect against respondent for the other two children. These findings are based on the evidence of respondent’s sexual abuse of the subject child and her ongoing refusal to accept responsibility for her actions, which demonstrate impaired parental judgment to such an extent that it placed the non-target children’s physical, mental or emotional condition at substantial risk of becoming impaired.

In sum, respondent is found guilty of sexual abuse as to the subject child, based on rape in the second degree; and, respondent is guilty of derivative neglect as to the other children. The allegations of alcohol abuse are dismissed since the evidence fails to establish that respondent repeatedly misuses alcoholic beverages to the extent that it caused a substantial state of stupor, unconsciousness, intoxication, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality.

For legal advice on matters related herein, a Kings County Family Attorney at Stephen Bilkis & Associates may prove helpful. Our legal teams have had extensive training and experience that you could benefit from. Contact us for a free consultation and speak to our Kings County Abuse and Neglect Lawyers, among others.

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