133 Misc. 2d 89 | N.Y.C. Fam. Ct. | 1986
OPINION OF THE COURT
The Lewis County Commissioner of Social Services here petitions the court for a finding of child abuse alleging that the respondent has sexually abused his daughter by commission of a sex offense as defined in the Penal Law (Family Ct Act § 1012 [e] [iii]).
Two of the witnesses presented by the petitioner allegedly
The alleged acts considered by the court occurred on or after the child’s 12th birthday (May 15, 1982) through August of 1985. The child, following the August 1985 incident, apparently disclosed the prior incidents to her mother. Having previously discussed grounds for divorce in New York with her attorney, the mother then had her attorney interview the child regarding the abuse allegations. In September of 1985 the acts of abuse became the foundation for a divorce complaint served upon the respondent.
In March 1986, following the parents’ separation in January 1986, a breach of the peace incident occurred necessitating State Police intervention. As the police were thus available the child determined it an appropriate time to disclose the alleged acts of sexual abuse. This she did by unsworn deposition dated March 17, 1986. On April 11, 1986, the State Police investigator forwarded a report of suspected child abuse to the Central Registry in Albany, New York. There was a subsequent investigation by the Lewis County Department of Social Services Child Protective Services resulting in this petition.
As the testimony heard by this court is diametrically opposed it is difficult to determine where credibility best fits. However, the issue of child abuse must be determined by placing the burden of proof upon the petitioner as to the allegation of Penal Law violation contained in the petition. As the alleged charges fall within the confines of Penal Law § 130.55 (sexual abuse in the third degree), this the petitioner must prove by no less than a fair preponderance of the evidence. Though the court is unable to conclude that the acts did or did not in fact happen it nevertheless can conclude that acts constituting a violation of Penal Law § 130.55 have not been shown by a fair preponderance of the evidence. This conclusion is based upon the failure of the child, and more particularly the child’s mother, to report the acts promptly to a proper authority; the variations between the testimony of the mother and child and the written deposition given the police; the interest that both the mother and child had in pursuing a divorce proceeding; the physical limitations of the respondent due to his physical disability; the recantation during the mother’s testimony; the failure of the 16-year-old child to respond forthrightly and without hesitation while testifying; and the fact that the respondent’s testimony did not alter with cross-examination.
At the close of testimony respondent’s counsel moved to allow additional proof in the form of polygraph evidence to be presented following polygraph testing of the respondent. The offer was made regardless of whether the subsequent testing
As the petitioner has failed to prove by a preponderance of the evidence that the respondent committed a sex offense as defined in the Penal Law, and having not presented evidence to support the allegation of neglect as contained in paragraph 6 of the petition, the petition is hereby dismissed.