PETITIONER WAS NOT REQUIRED TO PROVE THE SON ACTUALLY SEXUALLY ABUSED THE DAUGHTER TO MAKE A NEGLECT FINDING BASED UPON MOTHER’S LEAVING THE DAUGHTER UNDER THE SON’S SUPERVISION; THE DAUGHTER’S ALLEGATIONS SHE WAS SEXUALLY ABUSED WERE DEEMED SUFFICIENTLY CORROBORATED BY HER KNOWLEDGE ABOUT SEX AND PORNOGRAPHY; STRONG DISSENT (SECOND DEPT).

The Second Department, reversing Family Court, over a detailed and comprehensive dissent, determined the neglect petition was supported by the evidence. It was alleged that mother left her young daughter in the care of her 15-year-old son despite concerns about the son’s sexual behavior. Family Court held the Administration for Children’s Services (ACS) was required to, but did not, prove the son sexually abused his sister. Family Court also held that the sister’s claims her brother sexually abused her were not corroborated. The dissent agreed with Family Court. The majority held ACS was not required to prove the alleged sexual abuse took place and the sister’s claims of sexual abuse were corroborated by her knowledge about sex:

A finding of neglect is warranted when a parent allows the child to be harmed or placed in substantial risk of harm … . A parent, who, by willful omission, fails to protect a child, and as a consequence places the child at imminent risk of harm, demonstrates a fundamental defect in understanding the duties and obligations of parenthood and creates an atmosphere detrimental to the physical, mental, and emotion well-being of the child … . Here, ACS contended that the mother neglected the child because, despite her knowledge of the son’s sexually inappropriate behavior, the mother failed to provide proper care and supervision for the child by leaving the child alone with the son. * * *

This Court has found that evidence of a change in the demeanor of a child, sexual references by a child which are not age appropriate, and detailed, consistent out-of-court statements of sexual abuse can be sufficient to corroborate a child’s out-of-court statements of sexual abuse … . For example, in Matter of Osher W. (Moshe W.) (198 AD3d 904), this Court determined that, “‘[a]lthough the mere repetition of an accusation does not, by itself, provide sufficient corroboration, some degree of corroboration can be found in the consistency of the out-of-court repetitions'” … . Here, the child’s statements to school personnel, her godmother, and the caseworkers were consistent and detailed about the sexual activity that the son had engaged in with her. In addition, both the mother’s acknowledgment at the hearing that the son admitted to her that he watched pornography in the child’s presence and the son’s admission to the first caseworker that he had his own pornography account directly corroborated the child’s statements that the son watched pornography in her presence. The child’s knowledge of sexual behavior despite her age—her depiction to school personnel of the son’s pumping motion with his penis and her discussion of sex, which she called “polo” to the first caseworker, describing it as where “a man and a woman they don’t have any clothes on and they put their private parts into each other,” was further corroboration of her out-of-court statements about the son’s sexual abuse of her. Moreover, the records submitted into evidence demonstrate that the child, who had been happy and talkative at the hospital, became withdrawn and quiet when asked about the sexual abuse. Matter of Jada W. (Fanatay W.), 2023 NY Slip Op 04318, Second Dept 8-16-23

Practice Point: This decision discusses in depth the proof requirements for neglect based upon a mother’s leaving her daughter under the supervision of her son, despite concerns about the son’s sexual behavior (here it was not necessary to prove the sexual abuse actually occurred).

Practice Point: In addition, the decision discusses in depth the nature of proof sufficient for corroboration of a child’s allegations of sexual abuse (here the child’s knowledge about sex was deemed sufficient corroboration).