In re Jennifer Maria G.

112 A.D.2d 755 | N.Y. App. Div. | 1985

Order unanimously reversed, on the law and the facts, without costs, petition reinstated and matter remitted to Erie County Family Court for a new fact-finding hearing, in accordance with the following memorandum: Family Court erred in dismissing the petition at the close of petitioner’s case. Petitioner alleged, inter alia, that respondent Patrick G. sexually abused his six-year-old daughter and three-year-old daughter during unsupervised overnight visits at respondent’s home from November 1982 to January 1983. At the fact-finding hearing petitioner presented several witnesses, with whom the children had developed relationships of trust and concern, who testified each child told them that respondent, on more than one occasion, had placed his penis in each child’s mouth, vagina and rectum. Other witnesses, including the children’s foster mother and the older daughter’s teacher, testified that the children expressed fear after returning from visits with respondent and complained of pain in their vaginas. A senior psychiatric social worker concluded that the children had been sexually traumatized by respondent. Both children told a senior child protection services caseworker that sexual activities took place at "Daddy’s house”. The children did not refer to their foster father as "Daddy”. Perhaps most compelling was the testimony of a pediatrician who conducted a physical examination of each child. She stated that both children exhibited a superficial inflammation in the areas of their perineum and vagina. A throat culture of the younger daughter tested positive for the presence of oral gonorrhea. This evidence established a prima facie case against respondent (see, Family Ct Act § 1046 [a] [ii], [vi]; Matter of Cindy JJ., 105 AD2d 189; Matter of Rose B., 79 AD2d 1044, 1045-1046; Matter of Tonita R, 74 AD2d 830, 831; Matter of Keith R., 123 Misc 2d 617; Matter of Hawkins, 76 Misc 2d 738). Accordingly, we reverse and remit the matter for a new fact-finding hearing to be conducted by a judge other than the one who tried this case (see, Matter of Tashyne L., 53 AD2d 629, 630). (Appeal from order of Erie County Family Court, Honan, J. — sexual abuse.) Present — Hancock, Jr., J. P., Denman, Green, O’Donnell and Pine, JJ.