A Family Court judge has declined to make a finding that a teenager had been sexually abused in a case where the girl disappeared in the middle of proceedings and the judge said her incomplete testimony had been insufficiently corroborated.
New York City’s Administration for Children’s Services maintained that “Ruben R.” had sexually abused his 17-year-old stepdaughter, “Sabrina F.G.,” from age 5 and that Sabrina’s two younger siblings had been abused or neglected, and that Sabrina’s mother, “Melody R.,” knew or should have known what was happening.
But Sabrina ran away from her foster home before she had been fully cross-examined by Ruben’s attorney or questioned at all by Melody’s lawyer.
Brooklyn Family Court Judge Alan Beckoff (See Profile) in a Nov. 13 decision threw out ACS’ petition.
Family Court Act §1046 (a)(vi) provides that “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect.”
In Matter of Sabrina F.G., NA19461-3/10, Beckoff said he was presented with the question of whether what he was “treating as Sabrina’s out-of-court statements have been sufficiently corroborated. After full consideration of the record in this case and the pertinent case law, the Court reluctantly concludes that they have not.”
ACS filed the abuse petition, pursuant to Article 10 of the Family Court Act, in June 2010, at which point Sabrina was already the subject of a Persons In Need of Supervision proceeding. During the pendency of that case, Sabrina was remanded to ACS while her siblings, “Immanuel F.G.,” 16, and “Carmen R.,” 13, stayed with Ruben and Melody.
Sabrina testified in December 2010 that the abuse began when she was 5 and escalated over the years. She said she ran away from home three times due to a bad relationship with her mother and because of Ruben’s abuse.
About two weeks before a scheduled November 2011 fact-finding session where her testimony was to continue, ACS applied for a warrant for the teen, who had run away from her foster home for the second time. She was still missing on the day of the scheduled fact-finding session.
At a subsequent court appearance, Beckoff ruled the testimony would not be stricken, as Ruben’s attorney had urged, but said he would treat Sabrina’s previous testimony as out-of-court statements that had to be corroborated pursuant to Family Court Act §1046(a)(vi).
Beckoff also ruled he would not permit Sabrina to reopen her testimony if she returned.
Tiffane Martin, an ACS caseworker, testified that Sabrina had reiterated her claims of abuse to her, but the caseworker did not know if she had been medically examined.
Martin testified she had talked with Melody, Sabrina’s mother, who told her Sabrina was lying. Both Immanuel and Carmen, Sabrina’s younger siblings, agreed that Sabrina was lying and said that Ruben had never abused them.
At a later court date, Ruben denied all allegations against him while Melody said her husband used to have a good relationship with Sabrina, but the girl’s behavior deteriorated. Moreover, Melody said, Ruben had several heart attacks and took medication that limited his sexual performance.
Beckoff observed that both ACS and Sabrina’s attorneys had argued the child’s out-of-court statements were adequately supported by Martin’s testimony—”which was largely a repetition of what Sabrina had said.”
ACS and Sabrina’s attorney pointed to a 2011 Appellate Division, Second Department, ruling, Matter of Charlie S., 82 AD3d 1248.
The Charlie S. court affirmed a Family Court’s determination that a child’s out-of-court statements about his father touching his buttocks were properly corroborated by the testimony of a caseworker and high school principal. The Charlie S. ruling said the pair “stated that the child related to them that such activity occurred.”
But Beckoff said he was “not persuaded” by the ruling, which he viewed “to be something of an outlier in the body of appellate case law on corroboration in [Family Court Act] Article 10 proceedings.”
He noted that the Second Department “has, in other cases, recognized that repetition is not sufficient corroboration.”
Beckoff said that courts have allowed a child’s out-of-court statements to be cross-corroborated by a sibling’s out-of-court statement. But there was no such cross-corroboration here.
“According to Tiffane Martin, Immanuel and Carmen both said that Sabrina was lying and both denied” that Ruben abused them, the judge said.
Sabrina returned in March, but the judge refused to allow her to continue her testimony, saying that would have been “gaming the system.”
Staff attorney Ethan Wolf represented ACS.
A spokeswoman for ACS said that it “believes that the abused child should have been allowed to continue testifying once she was located and returned to foster care. We also believe that her sworn testimony would have corroborated her out-of-court statements made to our ACS child protective specialists. We are evaluating the decision and considering our legal options, including appeal.”
Erin Palacios of the Legal Aid Society represented Sabrina.
Judith Waksberg, director of appeals for Legal Aid’s juvenile right’s practice, said the agency was “very disappointed.”
“What the court called absconding behavior was not unusual for a child that was abused, and he should have allowed her to continue her testimony.”
Rannylin Dalley of Manhattan represented Melody.
Emmanuel Ntiamoah of Brooklyn represented Immanuel and Carmen.
Patrick Garcia of Brooklyn, who represented Ruben, said the judge had made “a thoughtful analysis of a very difficult issue.”
@|Andrew Keshner can be contacted at email@example.com.