Admin. for Children's Servs. v. Fanatay W. (In re Jada W.)

219 A.D.3d 732

195 N.Y.S.3d 226

In the MATTER OF JADA W. (Anonymous).

Administration for Children's Services, appellant;

v.Fanatay W. (Anonymous), etc., respondent.

2022–03131

Docket No. N–31118–17

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 9, 2023

August 16, 2023

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Rebecca L. Visgaitis and Amy McCamphill of counsel), for appellant.

Brooklyn Defender Services, Brooklyn, NY (Kathryn V. Lissy of counsel), for respondent.

Richard L. Herzfeld, New York, NY, attorney for the child.

COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, DEBORAH A. DOWLING, LILLIAN WAN, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10, the petitioner appeals from an order of fact-finding of the Family Court, Kings County (Melody Glover, J.), dated April 27, 2022. The order of fact-finding, after a hearing, dismissed the petition. Justice Dowling has been substituted for Justice Zayas (see 22 NYCRR 1250.1 [b]).

ORDERED that the order of fact-finding is reversed, on the law and the facts, without costs or disbursements, the petition is reinstated, a finding is made that the mother neglected the subject child, the matter is remitted to the Family Court, Kings County, for a dispositional hearing and a determination thereafter, and a temporary order of protection dated March 10, 2022, is continued pending that hearing.

In November 2017, the Administration for Children's Services (hereinafter ACS) filed a petition against the mother alleging, inter alia, that she had neglected her then 7–year–old daughter (hereinafter the child) by failing to provide the child with proper supervision or guardianship in that she knew or should have known that her then 15–year–old son (hereinafter the son) with whom she left the child was sexually abusing the child.

ACS's theory of neglect, and the position which it propounded during the hearing, as set forth in the allegations in the petition—and as delineated by counsel for ACS on the second day of the hearing as well as at the conclusion of the hearing, which transpired over the course of more than a year—was that the mother neglected the child by leaving the child unattended in the supervision of the son even though the mother knew that the child had alleged that the son had sexually abused her. ACS argued that the mother neglected the child by allowing the son to be a caretaker of the child despite the concerns the mother had or should have had about the son's history of sexual inappropriateness.¹ Contrary to the position articulated by our dissenting colleague, the petition expressly set forth this theory of neglect:

[The child is] under eighteen years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [her] mother ... to exercise a minimum degree of care in that:

1. The respondent mother ... fails to provide the subject [child] with proper supervision or guardianship in that she knew or should have known that the [son] was sexually abusing the subject child, and/or by any other acts of a similarly serious nature requiring the aid of the court, in that:

...

g. The respondent mother admitted that she leaves the subject child ... alone with [the son] to hang out with her friends and work. The respondent admitted that she leaves the subject child ... in the care of [the son] at least twice a week.

Based on the foregoing, the subject [child is] neglected or at risk of becoming neglected pursuant to Article Ten of the Family Court Act (emphasis added).

The petition also alleged, among other things, that the child informed school personnel at Brooklyn Community Services that the son masturbated in front of her on a regular basis and that he made her have sex with him, beginning when she was five years old. Specifically, the petition alleged, inter alia, that the child had told school personnel that the son made her take her underwear off, that he took off his underwear and had sex with her, and that the child depicted to school personnel a pumping motion with her hand to demonstrate what the son did with his penis when they were both naked from the waist down. The petition also alleged that the child told school personnel that the son "put his finger up her butt," that it occurred when the mother left them alone while she was at work, and that this "began when she was five (5) years old."

The hearing was commenced in March 2020; after ACS introduced certain records into evidence and an ACS caseworker (hereinafter the first caseworker) testified, the matter was adjourned to a new date. On the next hearing date, in May 2021, another ACS caseworker (hereinafter the second caseworker) testified that, after receiving a report, ACS arrived at the mother's home at approximately 3:00 a.m. on a date in November 2017 and the then seven-year-old child answered the door. The second caseworker testified that the child said that her mother was not at home but that her brother—who was then 15 years old—was home. The child was directed to get the son, who thereafter arrived at the door.

Approximately a half hour later, the mother, smelling of alcohol, arrived at the home. The second caseworker then spoke with the child and asked her if she knew her body parts and the child was able to identify them. The second caseworker then asked the child if anybody ever touched her private parts and the child said, "her, and her brother had sex." The second caseworker testified that she asked the child when was the last time and the child responded, "yesterday." The second caseworker then asked the child whether she knew what sex was, and the child responded, "you know what sex is, she shook her head, she said, you know what sex is." The child told the second caseworker that "her mother told her to say that it was a lie, to tell us what she told the school was a lie." The second caseworker further testified that the child told her that "her mother had checked her down [there] and she pointed to her private area—and that everything was okay." The second caseworker testified that the mother's screaming reaction to the police, who had arrived in response to a call from the first caseworker, when the mother arrived at the house prevented her from continuing her conversation with the child.

The first caseworker, who testified on the first day of the hearing in March 2020, averred that she spoke with the son, who admitted that he watches pornography, said that he has his own account, and said that the child did observe him watching pornography.

The first caseworker testified that she later had a conversation with the mother about whether there were any concerns about the son acting out sexually, and the mother replied that it was a lie. The first caseworker testified that the mother then told her that the child's godmother had told the mother that the child told the godmother that the son had touched the child's private part underneath her panties. The mother said that she didn't want to believe one child over the other. The first caseworker testified that she had observed an interview of the child conducted by an employee of the Brooklyn Child Advocacy Center, and that during that interview the child told the interviewer that the son was watching something that the child called "polo," which the child described as "a man and a woman they don't have any clothes on and they put their private parts into each other and that the boy moves around and he carries the woman somewhere." The first caseworker testified that the interviewer then asked the child if anything had happened between her and the son, and the child said she did not want to talk about it further; she had talked about it already.

At the May 2021 hearing date, the second caseworker testified that she, too, asked the mother if there had been "any previous concerns with [the son] acting out sexually," and that the mother admitted to her that when the son was 10 years old, the mother's brother found the son with the mother's then 8–year–old nephew in a room where the son was "pulling—bending the nephew down—bending the nephew over and pulling down his under wears [sic]." The second caseworker testified that she asked the mother if the child had reported anything like that before and the mother responded that the child told her godmother that "[the son] had pulled her panties down." The second caseworker testified that the mother said this occurred when "[the child] was four and [the son] was 12 at the time." The mother told the second caseworker that she had taken the child to the hospital." The mother told the second caseworker that she had also taken the son to a psychologist a couple of times but stopped when the son no longer wanted to go. The mother told the second caseworker that the son "had apologized" about the incident with his cousin and said that he was "sorry for humping his cousin."

Also in evidence at the hearing were medical records regarding an examination of the child at Kings County Hospital Center where she was taken after the report of the incident to ACS. The medical records show that the child was evasive when questioned about the sexual abuse, and stated that "if she [said] anything, she [would] be ‘taken away.’ " The records indicate that the doctor noted that the child "seem[ed] to be playful and talkative," but became "very quiet when asked about any sexual encounter between her and [the son]."² Likewise, according to the testimony of the second caseworker, initially the child was talkative and answering questions until she heard her mother scream at police officers in another room, at which point the child stopped responding to the caseworker's questions.

The mother also testified at the hearing, and admitted that the morning that ACS came to her apartment in November 2017 was not the first time that someone had brought concerns to her attention about her son's sexually...