Prima Facie Case of Family Offenses Not Established (Forcible Touching and Sexual Abuse)

The Second Department found that Family Court properly determined mother failed to establish a prima facie case of the family offense of forcible touching and sexual abuse and properly ruled hearsay inadmissible:

The mother presented no direct evidence that the father touched the child “for the purpose of degrading or abusing” the child or “gratifying [his] sexual desire” (Penal Law § 130.52; see Penal Law §§ 130.00[3]; 130.55;…. Furthermore, although, in some instances, the element of intent may be inferred from the nature of the acts committed and the circumstances in which they occurred…, an intent to gratify sexual desire on the part of the father cannot be inferred from the totality of the circumstances here…. * * *

Contrary to the mother’s contention, the Family Court properly refused to permit her to admit hearsay testimony pursuant to Family Court Act § 1046(a)(vi). That section, by its own terms, is limited to a “hearing under . . . article [10] and article ten-A” of the Family Court Act (Family Ct Act § 1046[a]), and although the hearsay exception contained in Family Court Act § 1046(a)(vi) has been applied in the context of custody proceedings commenced pursuant to Family Ct Act article 6 where the basis of the custody proceeding is founded on neglect or abuse such that the issues are “inextricably interwoven”…, the Family Court properly refused to apply Family Court Act § 1046(a)(vi) in this case…. Matter of Khan-Soleil v Rashad, 2014 NY Slip Op 05074, 2nd Dept 7-3-13