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Decided on June 19, 2009
Family Court, Nassau County

XX-XXXX-XX
Shari Landecker, Deputy County Attorney Office of the County Attorney 1200 Old Country Road Westbury, New York 11590 Jan Murphy, Esq.
Attorney for the Children
P.O. Box 692
Uniondale, New York 11553
Berkman, Henock, Peterson & Peddy, P.C.
By Joseph E. Macy, Esq.
Attorney for Respondent R. R.
100 Garden City Plaza
Garden City, New York 11530
John Schlingheyde, Esq.
Attorney for Respondent N. H.
550 W. Old Country Road, Suite 405
Hicksville, New York 11801
Ellen R. Greenberg, J.

Before the Court is an Article 10, child abuse and neglect proceeding brought by the [*2]Department of Social Services (hereinafter referred to as "DSS") on behalf of the children: L.
H. d.o.b. 12/25/01 and C. R. d.o.b. 08/20/04. The Respondent R. R. is charged, as a parent substitute, with sexually abusing the child, L. H.
The respondent mother N. H. is charged with failing to protect the child. The petition on behalf of C. R. is brought as a derivative petition against both respondents. The petitions relating to L. H. and C. R. respectively, allege that: The respondent parent substitute/father committed, or allowed to be committed, a sex offense
upon said child, as defined in the penal law. The respondents parent substitute/father and mother failed to provide said child with proper supervision or guardianship, and said child's physical, mental and emotional condition has been impaired and/or are in [sic] imminent danger of becoming impaired as a result of the failure of the respondents to exercise a minimum degree of care, requiring the aid of this Court, to wit:
a)The respondent parent substitute/father has committed sex offenses upon this six (6) year old child L. H. The respondent parent substitute/father placed a condom on his finger and inserted that finger into the six year old child's rectum. The respondent parent substitute/father did this, on 12/25/07, while babysitting L. H. and his biological child, C. R. C. R. was present in the same bed.
b)On or about 12/25/07, L. H. told the respondent mother that the respondent parent substitute/father inserted his finger in her butt. The respondent mother found the condom. On or about 3/26/08, the respondent mother told a detective from the Nassau County police department that she wanted to stop the investigation as she wanted the respondent parent substitute/father to return to the residence. The respondent mother is unwilling or unable to protect said child. Said child is in imminent danger of physical, mental and emotional harm due to the failure of the respondent mother to provide a minimum degree of care in the circumstances.
A fact-finding hearing was held over a number of dates: March 5, 2009, March 6, 2009, March 9, 2009, March 10, 2009, March 13, 2009, April 13, 2009, April 16, 2009, May 4, 2009 and May 18, 2009.
The Presentment Agency, DSS, called seven witnesses: Detective Edward Mercado of the Nassau County Police Department, Stephanie Castillo, Child Protective Services (hereinafter referred to as "CPS") caseworker, Dr. Bella Silecchia, Director of the Suspected Child Abuse and Neglect Evaluation Program, Detective Patricia Turner of the Nassau County Police [*3]Department's Special Services Squad's, Child Abuse Section, Alicia Barreto, CPS caseworker, Detective Alton Williams of the Nassau County Police Department and Christopher Chillseyzn, Forensic Geneticist.
The respondents did not call any witnesses, nor did the Attorney for the Children.
The respondent N. H. is the mother of the two children: L. H. born December 25, 2001 and C. R., born August 20, 2004. The respondent R. R. is the biological father of C. R. and alleged to be a parent substitute of L. H.
It is alleged that the act of sexual abuse took place in the child's residence. It is clear from the testimony that the two children live with their mother, N. H. There was testimony that while R. R.
and N. H. are a couple, they are not legally married. The testimony indicated that Mr. R. is legally married to someone other than N. H. and has a separate residence apart from N. H. and the children. However, he spends a great deal of time with Ms. H. and the two girls, living as a family.The testimony reveals that the child L. H. made a disclosure to her mother on the evening of December 25, 2007, that she was sexually abused by R. R. in her home during the day on December 25, 2007.
On December 26, 2007, the mother, N. H. brought L. H., the subject child to the Nassau County Police Department where they met with Detective Patricia Turner. Also present was Detective Edward Mercado, who was on hand for translation purposes for Ms. H. and if necessary, for L. H.
At that time, N. H. made one statement to Detective Turner in the presence of Detective Mercado. L. H. also made a statement at that time to Detective Turner, also in the presence of Detective Mercado. Both Detective Turner and Detective Mercado testified regarding the statements of N. H. and L. H.
N. H. gave a statement to Detective Turner which was translated by Detective Mercado that, Ms. H. went to work on December 25, 2007 leaving Mr. R. watching the children, L. H. and C. R. She indicated that she left the home at 8 A.M. and returned home at 6 P.M. Ms. H. told Detective Turner that Mr. R. hadn't been feeling well as a result of drinking the night before and that he was hung over and throwing up. She said upon her arrival, he immediately left the home and insisted on taking out the garbage which he had never done in the past. Later that evening, L. H. complained that her "butt" hurt and explained to her mother that "my daddy put his finger in my butt, put something round on his finger and put his finger in my butt and threw away the round thing."
Detective Turner stated that Ms. H. reported that she retrieved a condom from the garbage pail outside of her home which she put in a plastic bag and brought with her to the police department and gave to Detective Turner. Detective Turner testified that during the interview Ms. H. was upset and started to cry. She signed a statement that she wanted R. R. arrested.
Detective Turner and Detective Mercado also testified as to the statement given by the child,
L. H.
Detective Mercado reported that the child said that her father put something round on his finger and inserted his finger in her butt. She said this incident took place in her mother's room. He said that L. H. said it hurt when her father put his finger in her butt. Detective Mercado testified that the child spoke English well and therefore the interview was conducted in English. During the interview the child was calm and unwavering. [*4]
Detective Turner's testimony of L. H.'s statement was similar to that of Detective Mercado's. Detective Turner testified that L. H. told her "Daddy put a round thing on his finger and put it in my butt." She said he took the round thing from Mommy's pocketbook from outside the closet.
The child explained to Detective Turner that she was taking a nap with C. R. and Daddy. She said they were lying down on the bed. She described that she was lying on her side, Daddy next to her and her sister lying behind Daddy facing his back.
L. H. told Detective Turner that she was wearing a pink dress, blue socks and underwear which were down a little bit. She said Daddy took them off. She described Mr. R. as wearing a black tee shirt and underwear.
L. H. told Detective Turner that when Daddy put his finger in her butt she said, "Daddy no more like that and Daddy said okay." The child said it hurt a lot. The child stated that this happened in the afternoon while her mother was at work. She was able to state that the day this happened was Christmas. The Detective was very clear when stating that L. H. reported that Mr. R. put his fingers in her butt or booty- not on her butt.
The Presentment Agency also called Detective Alton Williams of the Nassau County Police Department.
Detective Williams testified that he was not the investigating detective on the case, but the detective responsible for the collection of evidence and was not present during any questioning of the child.
Detective Williams testified that on December 26, 2007 he collected evidence in this case from Detective Turner. He stated he collected a clear-like sandwich bag with a condom inside as well as a paper with a drawing. He indicated that he ordered testing as to whether Vaseline was present on the condom and that the results were negative for Vaseline.
He also indicated that he transported the mother and daughter to Nassau County Medical Center on December 26, 2007 for a physical exam to be conducted on the child.
Detective Williams further testified that on December 27, 2007 he drove the mother and child home and that the mother gave him the child's clothing to wit: a pink dress and a child's underwear which items were tested negative for semen. Detective Williams did state however that the clothing had been laundered between December 25, 2007 and December 27, 2007 when he received them.
Detective Williams also testified that he met with the mother, N. H., on March 26, 2008. He indicated that Stephanie Castillo, the CPS caseworker, was also present and served as a translator for Detective Williams, as Ms. H. only speaks Spanish.
Detective Williams reported that Ms. H. told him that she did not want to pursue the case. The mother told him that her daughter lies a lot. Detective Williams also testified that Ms. H. signed a withdrawal statement stating she no longer wanted to pursue the case. This statement was moved into evidence.
Detective Williams added that Ms. H. indicated that even if additional evidence were found implicating Mr. R., she would still not pursue the case.
Stephanie Castillo, the caseworker for CPS, also testified for the Presentment Agency. She indicated that she is a caseworker in the sex abuse unit who investigates allegations of suspected child abuse and neglect. Ms. Castillo testified that she spoke with N. H., L. H.'s [*5]mother, on December 27, 2007 at the Coalition against Child Abuse and Neglect, who told her the story told to her by L. H.
The story told to Ms. Castillo, mirrored the one told by Ms. H. to Detective Turner regarding the incident resulting in these allegations.
Ms. Castillo testified that Ms. H. told her that after L. H.'s disclosure to her, the child said she was hot and went to take a shower. Ms. H. told Ms. Castillo that the child normally takes a shower wearing her underwear but on this particular night, the child had taken the underwear off during the shower and washed it, which concerned her.
Ms. Castillo testified that during her meeting with Ms. H. on December 27, 2007 she told Ms.
H. that the children were not to have any contact with Mr. R. during the investigation of this matter.
Ms. Castillo went on to testify regarding a home visit with Ms. H. and the children on January 14, 2008. At that time Ms. H. told Ms. Castillo that she was overwhelmed financially and that she wanted Mr. R. to see the children. She also said she was not sure if the child was telling the truth about Mr. R. putting his finger in her butt.
Ms. H. stated that Mr. R. denied the allegations to her and told her that he had taken the condom out of her purse and used it to go to the bathroom and pleasure himself. When Ms. Castillo asked Mom if she believed Mr. R., Mom said she was not sure.
When Ms. Castillo spoke with the children on January 14, 2008, L. H. reported that she had lied about Mr. R. abusing her. L. H. indicated to Ms. Castillo that her sister told her it's her fault that they can't see their father and that she misses her father.
In a telephone conversation on March 13, 2008 Ms. H. told Ms. Castillo that she wanted to stop the police investigation as she was sure that nothing happened between the child and Mr. R.
Ms. Castillo and Detective Williams again met with the child, L. H., and Ms. H. on March 26, 2008 at Ms. H.'s request. Ms. H. told Ms. Castillo and Detective Williams that she wanted to stop the police investigation and wanted Mr. R. to return home. She stated that she depended on him financially and to watch the children at times. She added that she did not believe L. H. was telling the truth about the incident.
Ms. Castillo testified that L. H. told her that her mom told her to say that what she reported about Mr. R. was a lie. Ms. Castillo stated that she asked L. H. to tell her again what she had originally told Detectives the first time they met. When L. H. told her what she originally said had happened to her, she began to cry at the point that she said it hurt when he put his fingers in her butt.
She eventually admitted to Ms. Castillo that her attempt to recant was so that Mr. R. would be able to come home.
L. H. further reported that she had been having regular phone contact with Mr. R.
Ms. Castillo also testified that the younger child, C. R., who was supposedly lying on the bed with Mr. R. and L. H. on December 25, 2007, told her that her sister was lying about Mr. R. abusing her but nothing more.
The Presentment Agency also called Alicia Barreto, the CPS caseworker. Ms. Barreto testified that she interviewed the younger child, C. R., on October 27, 2008, ten months after the date of the incident. This interview took place in Family Court. [*6]
Ms. Baretto testified that she spoke with the child in both English and Spanish. She stated that the law guardian was present and directed the child to tell Ms. Barreto what she had told the law guardian. Ms. Barreto testified that the child stated that her father put a condom on his finger, which she demonstrated and then she pointed to her buttocks. She told Ms. Barreto that it was her sister to whom this happened.
Ms. Barreto did testify that just prior to interviewing the child, she had a conversation with Ms. Murphy, the Law Guardian, who explained the allegations against the father, as Ms. Barreto had no familiarity with the case. She also testified that the child was present in the room when Ms. Murphy was describing the allegations to her. Ms. Barreto explained that when C. R. described what her father had done, she used the word condom.
The Presentment Agency called Dr. Bella Silecchia as an expert witness. Dr. Silecchia is the director of pediatric ambulatory care and the director of the suspected child abuse and neglect evaluation program (hereinafter referred to as "SCAN") at Nassau University Medical Center. Dr. Silecchia was qualified as an expert in the area of child abuse and pediatric medicine. Dr. Silecchia testified that the child, L. H., was brought to the SCAN Center on December 27, 2007 for a forensic rape examination two days after the assault allegedly occurred.
Dr. Silecchia testified that she examined L. H. She testified that she did not find any evidence of semen. Upon examination of the child's anus, she observed healing fissures and fresh fissures. She explained that a fissure is a tearing of the skin which is the result of some type of trauma to the area. The healing fissure was in the 3 o'clock position and the fresh fissures were between the 9 and 10 o'clock positions. She testified that the older fissure was probably a couple of weeks old as scar tissue was forming in that area. Dr. Silecchia estimated the fresher fissures to be within two or three days old as they were only starting to heal.
She explained that whatever caused this had to do with the stretching out of the anal area allowing the skin to rupture, break or tear. Dr. Silecchia was clear in her testimony that the child had no history of constipation or hard stools but had a history of diarrhea. Dr. Silecchia testified that the most common cause of fissures is severe constipation, not diarrhea. She did state, however, that while severe diarrhea can cause anal fissures, they would be superficial, not deep ones. She added that there were no reports in this case indicating that there was severe diarrhea of this kind.
It is not disputed that on November 30, 2007 L. H. had been vomiting and had diarrhea. She was hospitalized from approximately December 1, 2007 until December 14, 2007 for appendicitis and eventually, an appendectomy.
While in Nassau University Medical Center and Schneider's Children's Hospital during the time of the appendicitis and appendectomy, L. H. had diarrhea. It continued on and off for one week prior to being seen by Dr. Silecchia on December 27, 2007. It was also confirmed by Dr. Silecchia in reviewing the medical records that L. H. had been prescribed Ampicillin, an antibiotic, for fourteen days, which is known to cause diarrhea. Dr. Silecchia also confirmed that the mother reported that the child had a poor appetite and was primarily on liquids which, she added, would also contribute to diarrhea in a patient. Additionally, the child had been given Tylenol suppositories. The mother reported that she had observed some anal or rectal bleeding following a suppository treatment.
Dr. Silecchia explained that diarrhea could cause the mucosa to become irritated and that [*7]any amount of subsequent tearing would depend on the force that was applied either by passing of large stool or by digital penetration of a male adult finger.
She also testified that she observed one deeper, healed fissure further along in the healing process from a few days to a couple weeks and that the smaller fissures were fairly superficial.
The medical records are in evidence and have been reviewed by the Court.
The Presentment Agency called Christopher Chillseyzn, a forensic geneticist for the Nassau County Department of Forensic Genetics.
After a thorough explanation of what DNA is and how to analyze DNA, Mr. Chillseyzn testified as to the testing he did regarding the respondents N. H. and R. R., as well as the child L.
H.
Mr. Chillseyzn explained that on January 9, 2008 he received a rape kit which was taken from the victim L. H. containing a buccal swab. He also stated that he received a bag containing a white paper folded around a condom and condom wrapper.
The buccal swab from L. H. and the condom both inside and out were examined.
Preliminarily, Mr. Chillseyzn indicated that both samples were tested for semen. Both tests yielded negative results for semen. In fact, the witness stated that he did not detect any semen in this case at all.
At the time that the test was done on the condom in January, 2008 it was determined that the DNA profile of the donor for the inside of the condom was from a single source, unknown male.
The outside of the condom had a mixture of DNA. The major contributor on the outside of the condom was the same unknown male found on the inside of the condom.
Mr. Chillseyzn further testified that after he did his analysis on the condom and on the child he received a sample from the respondent R. R. on October 29, 2008. He analyzed the sample provided by Mr. R. and determined that the DNA alleles from Mr. R. were the same as those of the unknown male donor found on the inside of the condom and the major contributor of DNA to the mixture on the outside of the condom.
Mr. Chillseyzn also indicated that he received a buccal swap from the mother, N. H., on September 23, 2008. He reported that he analyzed this sample and compared it to the mixture found on the outside of the condom and determined that both the victim L. H. and the mother N. H. could not be excluded as minor contributors to the mixture.
Mr. Chillseyzn stated that within a reasonable degree of scientific certainty, R. R. was the single source of the DNA on the inside of the condom as received, as well as the major contributor of DNA of the mixture found on the outside of the condom, and again that neither L. H. nor N. H. could be excluded as possible contributors of DNA to that mixture.
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