Opinion
NA XXXXX-XX/2013
05-19-2016
In the Matters of W.P. and V.S. Children Under 18 Years of Age Alleged to Be Abused by E.S., Respondent.
Zachary W. Carter, Corporation Counsel Alan W. Sputz, Special Assistant Corporation Counsel Administration for Children's Services, Family Court Legal Services (by Tiffany Wichman, Esq., and Allison Corley, Esq.) Bronx Family Court 900 Sheridan Avenue, 6th Floor Bronx, New York 10451 Telephone: 718-590-5438 Attorney for the Children: The Legal Aid Society Juvenile Rights Practice, Bronx Court Office 900 Sheridan Avenue, 6th Floor Bronx, New York 10451 (by Michelle L. Domena, Esq.) Telephone 718-579-7900 For Respondent E.S.: The Bronx Defenders - Family Defense Practice 360 East 161 Street Bronx, New York 10451 (by Patrick Clark, Esq., and Emma Ketteringham, Esq., and Pro Bono Counsel Mayer Brown LLP, 1221 Avenue of the Americas, New York, NY 10020, by Kari Gerber, Esq.) Telephone 718-838-7878
Zachary W. Carter, Corporation Counsel Alan W. Sputz, Special Assistant Corporation Counsel Administration for Children's Services, Family Court Legal Services (by Tiffany Wichman, Esq., and Allison Corley, Esq.) Bronx Family Court 900 Sheridan Avenue, 6th Floor Bronx, New York 10451 Telephone: 718-590-5438 Attorney for the Children: The Legal Aid Society Juvenile Rights Practice, Bronx Court Office 900 Sheridan Avenue, 6th Floor Bronx, New York 10451 (by Michelle L. Domena, Esq.) Telephone 718-579-7900 For Respondent E.S.: The Bronx Defenders - Family Defense Practice 360 East 161 Street Bronx, New York 10451 (by Patrick Clark, Esq., and Emma Ketteringham, Esq., and Pro Bono Counsel Mayer Brown LLP, 1221 Avenue of the Americas, New York, NY 10020, by Kari Gerber, Esq.) Telephone 718-838-7878 Carol R. Sherman, J.
On October 21, 2013, Petitioner Administration for Children's Services (ACS) filed a petition alleging that Respondent E. S. sexually abused the child W. P. (DOB XX/XX/2002) as defined in Article 130 of the Penal Law and Family Court Act § 1012 and derivatively abused the child V. S. (DOB XX/XX/2008). It also alleged that E. S. was a Person Legally Responsible for the child W. P. and the father of V. S. . The petition alleged:
"W. P. (DOB: X/XX/2002) and V. S. (DOB: X/XX/2008) are under the age of eighteen whose parent E. S. (DOB: X/XX/1973) father of the subject child V. and a person legally responsible for the care of the subject child W., committed or allowed to be committed a sex offense against such children as defined in Article 130 of the Penal Law or allowed the children to engage in conduct described in Article 263 of the Penal Law in that:a. On or about October 17, 2013, the subject child W. stated to the undersigned that her step-father, Mr. S., has been touching her private parts for the past two years, since the touching started when they lived two years ago in the basement apartment of their current address. She further stated that the respondent would touch her by moving his hands back and forth on her vagina and breasts under her clothing. The subject child further stated that the last time the respondent touched her was October 13, 2013, the day before her mother returned home from Mexico after a two week trip. b. On or about October 17, 2013, the subject child Maria [sic] stated to the undersigned CPS that on or about October 13, 2013, she was sleeping in her own bedroom and could not sleep as her mother was away. She stated that she went into her parent's bedroom and lay down in bed. The subject child then stated that the respondent began touching her on her vagina under her pajama pants. The subject child told the respondent to stop' but he did not. c. On or about October 17, 2013, the subject child Maria [sic] stated to the undersigned CPS that in the past the respondent has asked her to touch his penis and has held her hands and placed them on his penis. d. On or about October 17, 2013, the subject child Maria [sic] stated to the undersigned CPS that in the past, the respondent has shown her video on his Samsung phone (quote) of a husband and wife naked and doing stuff (end of quote). The subject child stated that she covered her eyes as she did not want to see the sex acts depicted in the video. e. On or about October 17, 2013, the subject child W. stated to the undersigned that in the past the respondent told her not to tell anyone that he touches her as she needs to keep it a secret. The subject child also stated that she does not feel safe when she is alone with the respondent. f. Based on the sexual abuse of W. P., the subject child V. S. is an abused child."
1. According to the respondent father E. S., the subject child V. is his biological daughter and he is the step-father of the subject child W. . Upon information and belief, the Respondent is a person legally responsible for the care of W. P. in that, according to the respondent, he has resided with the non-respondent mother for the past six years and he pays the rent, provides food, and pays tuition for both children to attend private school.
2. The Respondent E. S. committed sexual offenses against the subject child W. P. as defined in Article 130.52, 130.55, 130.60, 130.65, 130.80 of the Penal Law:
The court held fact-finding hearings on 10 days: June 24, 2014, September 23, 2014, February 10, 2015, February 24, 2015, May 5, 2015, May 20, 2015, June 15, 2015, June 19, 2015, December 11, 2015 and December 15, 2015. The court heard the testimony of ACS Child Protective Specialist Yocasta Del Rosario, Eileen Treacy, PhD, an expert witness who testified on behalf of Petitioner ACS, and Lisa Piechowski, PhD, an expert witness who testified on behalf of Respondent E. S.. Respondent S. did not testify. The court takes a negative inference as to Respondent S.'s failure to testify. The court admitted into evidence:
Petitioner's Exhibits
Petitioner Exhibit 1 — Certified and delegated records from Jacobi Medical Center/North Central Bronx Hospital for the child W. P. including the Child Advocacy Center (CAC) Petitioner Exhibit 2 — DVD recordings of the validation interview of W. P. conducted by Dr. Eileen Treacy Petitioner Exhibit 3 — Curriculum Vitae of Dr. Eileen Treacy Petitioner Exhibit 4 — Validation report and evaluation, "Sexual Abuse Assessment— Summary Report W. P. — DOB X/XX/02 — C2056 May 15, 2014" by Dr. Eileen Treacy
Respondent's Exhibits
Respondent Exhibit A — Curriculum Vitae of Dr. Lisa Drago Piechowski Respondent Exhibit B — Raw data used by Dr. Eileen Treacy to formulate her validation report of W. P. . The attorneys submitted written summations and memoranda of law which were received and reviewed by the court.
Evidence and Testimony Presented at Fact
Finding Hearing
ACS caseworker Yocasta Del Rosario testified she was assigned to this case October 17, 2013. She met with W., eleven years old, at Jacobi Hospital on October 17, 2013. Detective Eric Gonzalez was present at the interview. W. stated that during a lesson at school about "good touches and bad touches," she revealed that her "Dad" had been touching her in a bad way for the past two years. W. identified her "Dad" as E. S. . She said the last time this happened was October 13, 2013 when her mother, R. S., was away in Mexico. W. said Respondent S. touched her chest and her vagina and moved his hand back and forth. She said that she was afraid to be alone in her bedroom and had gone to her parents' bedroom. Her mother was away and Respondent S. was in bed. She lay on the bed next to him. He put his hands under her underwear and touched her vagina. W. told the caseworker that Respondent S. took out his penis and made her touch it. She asked him to stop but he did not stop. She pushed him away and then left the room. She also said that Respondent S. showed her naked "husbands and wives" on his Samsung cell phone, but she covered her eyes. W. said that the first time Respondent S. sexually abused her was in the basement of the house in which the family previously resided. Ms. Del Rosario testified that W.'s younger sister V. S., then five years old, was in the home at the time the incidents occurred.
On October 18, 2013, caseworker Del Rosario interviewed Respondent S. at the ACS field office. He said he was the stepfather of W. P. and that he had a good relationship with her. He lived with W., her mother and their daughter V. . He had brought W. and her mother from Mexico to New York in 2007 to live with him. He cared for them and supported them. Respondent S. denied touching W. inappropriately. He admitted he had pornographic material on his computer tablet but denied he showed it to W. .
On October 23, 2013 caseworker Del Rosario observed an interview with W. at the Child Advocacy Center (CAC) in Jacobi Hospital. Detective Eric Gonzalez, Assistant District Attorney Brady, Dr. Olga Jimenez and CAC social worker Michelle Greenberg were present. The interview was conducted by social worker Greenberg. W. told Ms. Greenberg that Respondent S. sexually abused her on several occasions over the past two years. The first time was in the basement in the home in which the family first lived. He touched her private parts, including her breast, vagina and butt. The last incident was in October 2013 when her mother was visiting in Mexico. W. described the incident in October in detail. She said she could not sleep and went into her parent's bedroom and lay in the bed next to Respondent S.. He began to touch her vagina under her pajamas. She asked him to stop, but he did not. She put a pillow between them. Respondent S. then got on top of her and asked her if she wanted more. She said he pulled her underwear down and placed his private part in her private part. She then got up and left the room. W. said Respondent S. told her that she should not tell anyone about what he had done. W. said she revealed the abuse by Respondent S. to a friend and teacher after a lesson at school about child sexual abuse. W. said she was concerned about her sister.
W. described other incidents of sexual abuse by Respondent S. . Respondent S. showed her a "husband and wife" naked on a Samsung Galaxy cell phone and his iPad, and she covered her eyes. W. said that when her mother was out of the home, Respondent S. would sexually abuse her. W. denied Respondent S. put his penis inside her mouth or her anus. W. said she was confused and she loved her "Dad" but wanted his touching and abuse of her to stop.
Dr. Eileen Treacy was called as a witness by ACS. Her curriculum vitae was introduced into evidence (Petitioner's Exhibit 3). She stated she has a PhD in psychology and has been teaching at Lehman College in the psychology department for thirty-one years. She also is a consultant on sexual abuse and sexual assault and has been conducting evaluations since 1984. She testified she has been qualified as an expert about 450 times in Federal Court and the Family and Criminal Courts in the five counties of New York City, and the counties of Westchester, Putnam, Dutchess, Nassau, Suffolk, Columbia, Rockland, Orange, Ulster, Albany, and Green. She has performed child abuse forensic evaluations in 2,092 cases. Courts have declared her an expert in child development, child sexual abuse, child rape trauma symptoms and the impact of domestic violence on children. Dr. Treacy is not licensed to practice psychology by the State of New York and never attempted to be licensed. She is not Board Certified by the American Psychology Association. She is a member of the American Professional Society on the Abuse of Children (APSAC) and the American Psychology Society. The court deemed Dr. Treacy an expert in developmental psychology and child sexual abuse.
Dr. Treacy testified she followed APSAC guidelines, "Interview Guidelines in Mental Health Evaluations When Sexual Abuse is Suspected" (1997), and New York State Forensic Interviewing Best Practices in performing her child sexual abuse validations. Dr. Treacy said these guidelines were accepted in the scientific community. The purpose of the guidelines was to elicit reliable information. Dr. Treacy acknowledged that the APSAC guidelines were not empirically tested, but were peer-reviewed. She said that over 2500 people had been trained in the APSAC guidelines. Dr. Treacy stated that performing a child sexual abuse evaluation is a process in which an expert does a mental health evaluation to determine whether a child's statements, behaviors, and affect are consistent with sexual abuse. It includes testing for cognitive competency, trauma and behavioral measures. Dr. Treacy stated she used protocols to assess a child's developmental status and followed a format which includes a first contact, role introduction, interviewing, rapport establishment, testing of competence, and an investigatory interview. Dr. Treacy testified that in the last ten years she validated about 40 percent of the cases referred to her as consistent with child sexual abuse. She did not validate about 60 percent of the cases. It is rare that she does not make a determination.
Dr. Treacy met W. P. on two occasions, on March 7 and March 28, 2014 at her office. W., 11 years old at that time, was brought to the evaluation by her mother. Dr. Treacy testified she did not read anything or speak with anyone about the case prior to the first interview other than to accept the referral. The interview was videotaped (Petitioner's Exhibit 2). Dr. Treacy said she needed to show W. that she was in authority and that she fought for the kids she interviewed. She told W. she was the 2,056th child she had interviewed and that W. should not be embarrassed by anything she said. Dr. Treacy testified that her efforts and statements were focused on making W. feel comfortable and safe and were an attempt to reduce her feelings of stigmatization. Dr. Treacy said she created an atmosphere that was warm, neutral and friendly. She asserted she did not influence W.'s disclosure. Dr. Treacy tested W.'s memory and her understanding of truth and lies.
Dr. Treacy testified that at W.'s first interview, W. spontaneously brought up the sexual abuse by Respondent S. . According to Dr. Treacy's report (Petitioner's Exhibit 4, page 6, lines 15-17), W. said, "Do you know what happened to me?", and then said: "My dad touched me in the wrong place. I still like him." When discussing the abuse, W. grimaced, sighed deeply and then became more animated and stronger. W. disclosed that Respondent S. fondled her breasts and private areas and made her touch his private parts with her hand and mouth. She said he touched her private parts with his mouth and put his penis in her vagina. He also showed her pornography.
W. said that in the beginning Respondent S. touched her over her clothes and then progressed to under her clothing. W. said the sexual abuse began about one year after she arrived in New York from Mexico, although she was not certain as to time. She said the abuse occurred in different rooms in the homes in which she resided, and that sometimes her mother was away and sometimes she was asleep. She said that V. was home and asleep at the time of many of the incidents. W. described multiple and different acts of sexual abuse by Respondent S. that progressed over time. She was detailed in her descriptions. She said that at first he touched her over her clothes and put her hand on his private part. Over time he took off her clothes and put his private part on her vagina and between her breasts and in her mouth and "sometimes, he'd put it inside my private part" (Petitioner's Exhibit 4, page 13, line two). He put his mouth on her private part. When asked by Dr. Treacy to describe Respondent's penis, W. said that it was light brown and was small and then got big. She said that the top part got wet and slimy.
Between the two interviews of March 7 and March 28, 2015, Dr. Tracey reviewed the ACS progress notes, the interview of W. at Jacobi Hospital CAC, and she spoke to the CAC social worker Michelle Greenberg who interviewed W.. Dr. Treacy also interviewed W.'s mother. After the second interview, Dr. Treacy spoke to W.'s therapist.
Dr. Treacy administered to W. the Kaufman Brief Intelligence Test II (2004) and the Trauma Symptom Check List for Children (1996). She also administered the Spanish language forms of the Trauma Symptom Check List for Young Children (2003), the Child Sexual Abuse Behavior Inventory (1997), and the Child Behavior Checklist for Ages 2-18 (2002) to W.'s mother. She asked two of W.'s teachers to complete the teacher report forms of the Child Behavior Check list (2001). Dr. Treacy found W.'s cognitive abilities to be learning disabled with an IQ below average. Dr. Treacy testified W. had special needs and her cognitive ability affected her ability to discuss abstract concepts such as time. W. was significantly depressed and withdrawn and had low self-esteem.
Dr. Treacy stated that she used the Sgroi Model (see Suzanne M. Sgroi, MD, Handbook of Clinical Intervention in Child Abuse, [1982]). She said it was used by most professional evaluators in the field of child sexual abuse in New York and was part of the training curriculum of the New York State Forensic Best Practices for Child Protective Specialty, the New York State Police Department and presentations on victimology. The Sgroi method was generally accepted and nationally recognized in the field. It was used in the APSAC guidelines. Counsel for Respondent S. questioned Dr. Treacy at length about the Sgroi method and compared it to other protocols including those by Dr. Summit and Dr. Lyons as to the child sexual abuse accommodation syndrome. Dr. Treacy was clear that she found Dr. Sgroi's protocol the most effective and reliable.
Dr. Treacy, using the ASPAC and NYS Best Practices guidelines, questioned W. by the "funnel" method. She began with a free narrative, moved to open-ended questions, then to multiple choice questions, then to yes or no questions. The goal was to avoid leading or suggestive questions. W. disclosed sexual abuse by Respondent S. early in the interview.
Dr. Treacy said that an evaluator must also consider alternative hypotheses and remain neutral. The evaluator must rule out other reasons for the child's statements, behavior and demeanor. W. stated that her cousin Ramon, 13 years old, touched her breast and genitals over her clothes in Mexico. However, W. spent very little time discussing Ramon and did not give it much significance. Her primary focus and detailed account was as to Respondent S.. W. exhibited distress in discussing S.. Dr. Treacy found W.'s disclosure as to Ramon did not undermine her detailed account of Respondent S.'s abuse of W..
Dr. Treacy testified that W.'s description of the abuse complied with Sexual Abuse Dynamics of Engagement, which included sexual interaction, secrecy, disclosure and suppression, as described in the work of Dr. Suzanne M. Sgroi. Such behavior included opportunity, progressive sexual contact over time and secrecy. Dr. Treacy testified that the five stages of child sexual abuse consistent with Dr. Sgroi's work included:
engagement during which the offender gains access and opportunity to child.Dr. Treacy testified that W.'s description of Respondent S.'s behavior and her own reactions, feelings and behaviors fit within this model.
establishment by the offender in a position of trust in relation to the child.
breakdown of the child's normal aversion to sexual behaviors
conducting of behaviors that tend to be progressive and hierarchical.
establishment of secrecy, either through direct threat or child's perception of what will happen.
victim disclosure either accidentally or on purpose
W. told Dr. Treacy that Respondent S. was "nicer" to her when he was sexually abusing her. He would give her an "instagram" when he was touching her. W. said she felt sad that her disclosure had disrupted her family and upset her mother. She stated, however, that if she had not disclosed, she believed that her "father" would have continued sexually touching her.
Dr. Treacy testified that after the interviews of W., the gathering of information from collateral sources and the relevant documentation, it was her expert opinion that W.'s behavior, statements and affect were consistent with child sexual abuse. W. was sexually knowledgeable and pre-occupied with sex beyond her age. She exhibited symptomatology consistent with sexual abuse. Dr. Treacy explored alternative explanations as to the basis for W.'s behavior, statements, and affect but found no evidence of coaching, prompting or prepping. Further, there was no indication of any motivation for W. to fabricate or tell untruths, no misinterpretation of routine medical care and no other consistent abuser.
The court reviewed the Jacobi Medical Center records (Petitioner's Exhibit 1). W. was seen in the pediatric emergency department on October 17, 2013. At the emergency room, W. told the social worker that, after a lesson at school on body parts and keeping safe at school, she had told a friend of being sexually abused by her "father." She then told a teacher. W. appeared embarrassed and upset. On October 23, 2013, W. returned to Jacobi Medical Center and was seen at the CAC. She was examined by Dr. Olga Jimenez. In the records, Dr. Jimenez noted that W. told her that her stepfather touched her breasts and genital area with his hand and made her touch his penis. W. also reported that on at least one occasion, her stepfather put his penis on her vagina. Dr. Jimenez noted that W. was reluctant to talk about the incidents. Jacobi Medical Center social worker Michelle Greenberg interviewed W. at the CAC. W. described the sexual abuse by her stepfather.
Respondent S. called Dr. Lisa Piechowski as a witness. Dr. Piechowski's curriculum vitae was admitted into evidence (Respondent Exhibit A). She is licensed to practice psychology in six states including New York and board certified in forensic psychology. She has been in private practice as a forensic psychologist since 1998 and has done evaluations of adults, adolescent children and families. She has interviewed approximately 50 to 75 children who were the subject of child protective and custody proceedings in Connecticut and performed approximately 150 evaluations. She is the president-elect of the American Board of Forensic Psychology and is co-author of the American Psychological Association Guidelines for Psychological Evaluations in Child Protective matters. She has been qualified as an expert by a court fifteen times. This was the first time she was testifying in New York. The court declared Dr. Piechowski an expert in forensic psychology.
Dr. Piechowski testified as to her criticisms of and the flaws in Dr. Treacy's forensic protocol and evaluation. She said that Dr. Treacy did not follow basic psychological principles. Dr. Piechowski acknowledged that she never saw W. and was not offering the court guidance as to whether W. was sexually abused by Respondent S. . Dr. Piechowski contrasted a clinical evaluation with a forensic evaluation. The primary purpose of a clinical evaluation was to assist the individual through diagnosis and treatment. The evaluation presented a subjective point of view and impression. Dr. Piechowski testified that in a forensic evaluation, the interviewer must take an unbiased attitude and present objective evidence to assist the court. The evaluator must cross-validate the interview data with psychological testing, treatment records and collateral sources. The testing used should be valid and reliable. She stated that the subject should feel comfortable and responsive but the process is not informal. Dr. Piechowski stated that the preferred guidelines to be used by forensic psychologists are the Specialty Guidelines for Forensic Psychology (2013). The forensic psychologist must subject the data to numerous and conflicting hypotheses.
According to Dr. Piechowski, the purpose of a child sexual abuse evaluation in New York is to evaluate the child to determine if he or she exhibits characteristics and/or behaviors consistent with a child who has been sexually abused. Evaluators do not generally rely on a child abuse "syndrome." Dr. Piechowski testified that many children who are sexually abused do not exhibit symptomatic behaviors and many who are not sexually abused do exhibit symptomatic behaviors. Further, child sexual abuse validators are generally not accepted in the expert community outside of New York State.
Dr. Piechowski testified that she reviewed Dr. Treacy's evaluation in this case, watched the videotapes of the interview with W., read the report, as well as analyzed the raw data that Dr. Treacy used to formulate her opinion (Respondent Exhibit B). Dr. Piechowski also reviewed the criminal complaint against Respondent S. and the affidavit by Dr. Treacy that was submitted to the court in opposition to the Frye motion filed by Respondent S. .
The motion requested an order precluding the testimony and report of Dr. Eileen Treacy because her methods and theories were not based on generally accepted scientific principles in the field of child sexual abuse validation or, in the alternative, a Frye hearing to determine whether the methods and protocols used by Dr. Treacy were based on scientific principles, procedures and methods (see Frye v United States, 293 F 1013 [Ct App DC 1923]).
The court denied the motion finding that a Frye hearing was not warranted because there were no novel scientific theories or methods at issue in this matter. Family Court Act § 1038 ( c ) authorizes an examination and evaluation of the child for the purposes of offering expert validation testimony in an Article 10 proceeding. Decisional case law has upheld the admissibility of validation testimony in Article 10 child sex abuse cases as corroborative evidence of a child's prior outofcourt statements, and has specifically recognized the Sgroi Model used by Dr. Treacy as an accepted validation method ( see Family Court Act § 1046 [a] [iv]; Matter of Nicole V., 71 NY2d 112, 121 [1987]). Further, at factfinding hearing, Respondent S. would have an opportunity to crossexamine Dr. Treacy as to the issues he raised as to her application of validation principles, procedures and methods and present his own witnesses at hearing if he wished to do so ( see Matter of Wendy P. [Edwin S. ], 47 Misc 3d 1202(A), 2015 NY Slip Op 50365 [U] [ Fam Ct, Bronx County 2015]).
Dr. Piechowski testified to errors in Dr. Treacy's interview techniques, methodology and data interpretation and analysis. She stated that Dr. Treacy's interview of W. was not appropriately structured and her rapport building and techniques were more appropriate in a clinical interview and therefore her evaluation was closer to a clinical evaluation rather than a forensic one. Dr. Treacy was intimate and overly supportive. Dr. Piechowski did not believe Dr. Treacy's evaluation to be appropriate in its technique, methodology and data analysis and interpretation for a forensic interview.
Dr. Piechowski opined that Dr. Sgroi's work and protocol, on which Dr. Treacy relied, was written in the 1980s and was not evidence-based and, therefore, not tested or evaluated. She said it was no longer recognized in the profession. According to Dr. Piechowski, Dr. Sgroi, herself, had warned about the use of her protocol in validating child sexual abuse cases. Dr. Piechowski testified to the general acceptability of the protocol developed by the National Institute of Child Health and Human Development, which has been empirically tested. She testified that even it still had problems in that there was a 25 percent error rate, other protocols had a 50 percent error rate.
Further, Dr. Piechowski stated that Dr. Treacy did not administer, score or evaluate W.'s psychological testing correctly. Dr. Treacy administered a verbal test to W. that was less reliable than a written one, and Dr. Treacy made mathematical errors. Also, the trauma symptom inventory for children should not have been administered to W. verbally, but should be given in writing.
According to Dr. Piechowski, Dr. Treacy did not rigorously test other hypotheses before confirming the hypothesis that W. was sexually abused by Respondent S. — specifically she did not sufficiently question W. about her sexual experience with a boy named Ramon by whom she said she had been sexually touched when residing in Mexico.
Dr. Piechowski stressed that it was essential to use an empirically based methodology to know if the evidence was accurate and reliable. Dr. Piechowski found Dr. Treacy was too directive and biased and was not objective and interjected herself into the evaluation. Dr. Piechowski admitted, however, that guidelines of any kind were aspirational, not mandatory, and would not take precedence over the judgment of the psychologist doing the evaluation. She further admitted that W. made an actual, spontaneous disclosure of being sexually abused by Respondent S. .
Legal Analysis
The petition alleged that Respondent E. S. is a "person legally responsible" for the care of the subject child W. within the meaning of Family Court Act § 1012 (g) and that he committed sex offenses against the subject child W. as defined in Article 130 of the Penal Law (see Family Court Act § 1012 [e] [iii]). ACS advocated that the court enter a finding of abuse against Respondent S. on behalf of the subject child W. P., and a finding of derivative abuse on behalf of the subject child V. S. .
Family Court Act § 1012 (g) provides that a " Person legally responsible' includes the child's custodian, . . . Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child." The court finds, by a preponderance of evidence, that Respondent S. is a person legally responsible for the care of W. within the meaning of Family Court Act § 1012 (g). Respondent S. was in a "familial relationship" with W. of long duration, he lived in the same household and functioned as a parental equivalent in his relationship with W. (Matter of Trenasia J. [Frank J.], 25 NY3d 1001, 1004 [2015] citing Matter of Yolanda D., 88 NY2d 790, 797 [1996]).
ACS caseworker Del Rosario testified that on October 18, 2013, Respondent S. admitted to her that he resided with W., her mother and his child V. . He had brought W. and her mother from Mexico to New York in 2007. He paid W.'s tuition at Catholic school and often cared for her. Caseworker Del Rosario testified that W. considered Respondent S. her "Dad." Respondent S. was the father of the child V. . Respondent S. has not presented any evidence to refute these findings.
In this matter, Petitioner ACS has the burden of proof and must establish the elements of the charge of child sexual abuse by a preponderance of "relevant, competent and material evidence" (Family Court Act § 1046 [b] [iii); Matter of Tammie Z., 66 NY2d 1 [1985]). To sustain a finding of child sexual abuse on behalf of W. in this matter, ACS must demonstrate, by a preponderance of evidence, that Respondent S., a person legally responsible for the care of W. at the relevant time, committed a sex offense against her defined in Article 130 of the Penal Law (see Family Court Act § 1012 [e] [iii]). ACS alleged that Respondent S. committed the following sex offenses: Penal Law §§ 130.52 (forcible touching), 130.55 (sexual abuse in the third degree), 130.60 (sexual abuse in the second degree), 130.65 (sexual abuse in the first degree), and 130.80 (course of sexual conduct against a child in the second degree). Sexual conduct as defined in Article 130 includes acts of sexual intercourse, oral sexual intercourse, anal sexual conduct, aggravated sexual contact or sexual contact (Penal Law § 130.00 [10]). Sexual contact means "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing" (Penal Law § 130.00 [3]). Sexual gratification may be inferred from a totality of the circumstances and from the conduct itself ( see Matter of Jani Faith B. [Craig S. ], 104 AD3d 508 [1st Dept 2013]). Lack of consent of the victim is an element of every offense defined in Article 130. However, the statute provides that a child less than seventeen years old is deemed incapable of consent (Penal Law § 130.05). Article 10 of the Family Court Act states that "(a) the corroboration requirements contained in the penal law and (b) the age requirements for the application of article two hundred sixty-three of such law shall not apply to proceedings under this article" (Family Court Act § 1012 [e] [iii]).
W.'s prior out of court statements to ACS caseworker Del Rosario and to social worker Greenberg at the Jacobi Medical Center CAC describe acts by Respondent S. that constitute sex offenses as defined in Article 130 of the Penal Law. W. stated that Respondent S. forcibly touched intimate parts of her body (Penal Law § 130.52) and engaged in repeated sexual contact with her by forcible compulsion when W. was less than 11 years of age (Penal Law §§ 130.55, 130.60, 130.65). Moreover, W. reported an ongoing course of sexual misconduct against her by Respondent S. lasting over a period of two years or more (Penal Law § 130.80). Respondent S.'s misconduct demonstrated an intent to obtain sexual gratification through forcible touching and contact. The court finds by a preponderance of the evidence that the nature of the offenses reported by W. and the circumstances in which they occurred establish sex offenses as set forth in sections 130.52, 130.55, 130.60, 130.65, and 130.80 of the Penal Law.
W.'s prior out-of-court statements to the ACS caseworker and the social worker at Jacobi Medical Center are admissible in evidence pursuant to Family Court Act § 1046 (a) (vi). However, "if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements . . . shall be sufficient corroboration" (Family Court Act §1046 [a] [vi]).
In the seminal case of Matter of Nicole V. (71 NY2d 112 [1987]), the Court of Appeals stated that corroborative evidence is required before the court may enter a fact-finding of abuse or neglect based on a child's out-of-court statements not "because statements of children are generally unreliable, but because the out-of-court statements are hearsay and the statute requires some further evidence to establish their reliability" (id. at 118). The degree of corroborative evidence is relatively low, requiring "any other evidence tending to support the reliability of the previous statements" (Family Court Act §1046 [a] [vi]), and the Family Court "is vested with considerable discretion in determining the admissibility of such statements . . . " (Matter of Kole HH., 61 AD3d 1049, 1051-1052 [3d Dept 2009], lv dismissed 12 NY3d 898 [2009], citing Matter of Caitlyn U., 46 AD3d 1144 [3d Dept 2007]; Matter of Kayla N., 41 AD3d 920, 922 [3d Dept 2007]; Matter of Joshua QQ., 290 AD2d 842, 843 [3d Dept 2002]).
The Court of Appeals noted that these special rules for Article 10 proceedings were enacted in 1985 in response to evidentiary problems inherent in child sexual abuse matters. "Such abuse is difficult to detect because the acts are predominantly nonviolent and usually occur in secret rendering the child the only witness. Moreover, once abuse is uncovered, it is difficult to fix blame, not only because of the lack of evidence but also because of the reluctance or inability of victims to testify" ( Matter of Nicole V., 71 NY2d at 117).Particularly problematic in cases of intrafamilial child sexual abuse is the fact that there are generally no admissions by culpable parties, no eyewitnesses and no direct evidence of abuse" ( Matter of Linda K., 132 AD2d 149, 155 [2d Dept 1987]). Physical evidence in child sexual abuse cases is rare because "[m]ost crimes consist of petting, exhibitionism, fondling, and oral copulation, activities that do not involve forceful physical contact. The lack of physical corroboration can also be attributed to the fact that most children, for a variety of reasons, do not resist their attackers" ( id. at 155-156).
The intent of the Legislature was to create "a broad flexible rule [in Article 10 proceedings] providing that [the child's] out-of-court statements may be corroborated by [a]ny other evidence tending to support' their reliability (id. at 156 quoting L 1985, ch 724). "The law permits the admission of these out-of-court statements in these limited circumstances because, without such evidence, it is often difficult to prosecute child abuse without exacerbating the child's traumatic experience by requiring the child to testify and because the typical secrecy involved with intra-familial dysfunction of this type (Matter of Nicole V., 71 NY2d 112, 518 N.E.2d 914, 524 N.Y.S. 2d 19 [1997]) often dissuades the child from testifying truthfully. By allowing hearsay in this type of case, the law attempts to avoid the potentially disastrous consequences to a child that can result from erroneous dismissal of a child abuse case " (Matter of Ingrid R., 18 Misc 3d 1129[A] [Fam Ct, Queens County 2008] citing Matter of Christina F., 74 NY2d 532, 548 [1989]).
In Matter of Nicole V., the Court of Appeals authorized the use in an Article 10 proceeding of the testimony of an expert witness "validator" as a means to corroborate a child's out-of-court statements, and found the validator's use of the "Sgroi methodology" valid and reliable. The Court stated that validator testimony that a child's behavior and statements were symptomatic of those found in sexually abused children (based on the nature of the child's statements, consistency of the statements over time, the validator's observations of the child's behavior and the child's age-inappropriate knowledge of sexual abuse) was sufficient to serve as corroboration of the child's prior statement (Matter of Nicole V., 71 NY2d at 120-121).The Court stated that such expert testimony can demonstrate the psychological and behavioral characteristics and reactions typically shared by victims of abuse in a familial setting (id.).
All four appellate departments have upheld family court findings based on validations and testimony of validator experts many of whom employed the Sgroi Model. The appellate courts have found such expert testimony sufficient for the corroboration of the child's prior statements and the entry of a finding of child sexual abuse (see Matter of Pearl M., 44 AD3d 348 [1st Dept. 2007] [expert testimony as to child's demeanor and language and consistency of her statements over time about the sexual abuse as well as the child's demonstrations of the father's actions with an anatomically correct doll sufficiently corroborated the child's prior out-of-court statements; Matter of Emani [Owana E.], 107 AD3d 815, 816 [2d Dept 2013] ["subject child's out-of-court statement regarding acts of sexual abuse upon her was corroborated by an expert in clinical and forensic psychology, with a specialization in child abuse, who evaluated the subject child and concluded that she exhibited behavior indicative of sexual abuse] [internal citations omitted]; Matter of Thomas N., 229 AD2d 666 [3d Dept 1996] [holding that testimony of team leader of the sexual abuse treatment program who was trained in the Sgroi Model was legally sufficient to validate and corroborate the child's out-of-court statements to the extent required by section 1046 (a) (vi) of the Family Court Act]; Matter of Bethany F. [Michael F. ], 85 AD3d 1588 [3d Dept 2011] [affirmed the family court's finding of child sexual abuse based on the testimony of an expert who utilized the "Sgroi" method in her assessment of the child]).
In this matter, Petitioner ACS has offered Dr. Treacy's testimony and validation report to corroborate the prior out-of-court statements made by W. to the ACS caseworker and the Jacobi Hospital social worker at the CAC who interviewed her and the issue before the court is whether Dr. Treacy's testimony is sufficiently valid and reliable to serve as corroborative evidence.
The court qualified Dr. Eileen Treacy as an expert in developmental psychology and child sexual abuse based on her educational, professional and experiential qualifications. She testified she had worked on 2092 cases alleging child abuse and been qualified as an expert approximately 450 times, almost all in the State of New York.
Dr. Treacy met with W. twice, interviewed her mother, contacted collateral sources and reviewed the Jacobi CAC records and the ACS records. She administered an intelligence test and a trauma symptom checklist. She followed the APSAC 1997 guidelines as well as NYS Forensic Interviewing Best Practice Guidelines and used the protocol developed by Dr. Sgroi. Based on the information gathered, Dr. Treacy testified that W., through her statements, behavior, affect, and age-inappropriate knowledge of sex, exhibited characteristics of a child who had been sexually abused. She also described behavior and feelings consistent with the child sexual abuse dynamics delineated by Dr. Sgroi.
Moreover, W.'s disclosure of the sexual abuse occurred spontaneously after a presentation at school on "good touches and bad touches." W. spontaneously brought up the abuse in her interviews with Dr. Treacy without prompting or coaching. Dr. Treacy did not initiate questions about the sexual abuse until after W. had raised it and did not correct or give W. "right answers" to her questions as claimed by Respondent S.. W.'s descriptions were extremely detailed, logical and consistent through many interviews over time. The spontaneity of W.'s initial disclosure and her behavior and demeanor during the videotaped interview is evidence tending to support the reliability of her prior out-of-court statements concerning the sexual abuse by Respondent S., and provides corroboration sufficient to make a finding of child sexual abuse (see Matter of Ian H., 42 AD3d 701, 704 [3d Dept 2007], lv denied 9 NY3d 814 [2007] holding that the child victim's spontaneous declaration, " [J]ust like he did to me,' " after watching a news broadcast regarding respondent and being told that respondent was arrested for inappropriately touching little girls served as corroborative evidence of the child's prior out-of-court statements concerning sexual abuse committed against her by the respondent).
Further, at no time did she recant her statement. Importantly, Dr. Treacy found no basis to conclude that W. had fabricated her accusations. Dr. Treacy found in her videotaped interviews with W., which were entered in evidence (Petitioner's Exhibit 2), that W.'s statements and behavior and knowledge were indicative of a sexually abused child. Dr. Treacy's validation testimony as an expert in psychology with a specialization in child abuse provides sufficient corroborative evidence to support a finding that Respondent S. sexually abused W. (see Matter of Karina L.[Israel R.], 106 AD3d 439 [1st Dept 2013]; Matter of Pearl M., 44 AD3d at 349; Matter of Emani [Owana E.], 107 AD3d at 816; Matter of Amber C. [Miguel C.], 104 AD3d 845, 961 [2d Dept 2013]; Matter of Nicholas J.R. [Jamie L.R.], 83 AD3d 1490 [4th Dept 2011]; Matter of Briana A., 50 AD3d 1560 [4th Dept 2008]). Respondent S. did not present any viable motivation that would cause W. to make false accusations.
The court draws a negative inference against Respondent S. based on his failure to testify ( Matter of Jani Faith B. [Craig S. ], 104 AD3d at 509; Matter of Daniela R. [Daniel R. ], 118 AD3d 637, 638 [1st Dept 2014]). Respondent S. rested his entire case on the expert testimony of Dr. Piechowski. Dr. Piechowski was knowledgeable in her field and had been declared an expert by a court about 15 times, substantially fewer than Dr. Treacy. Although Dr. Piechowski conducted evaluations in child sexual abuse cases, she had never conducted the type of evaluation in this matter, a sexual abuse validation. Dr. Piechowski was highly critical of Dr. Treacy's evaluation, her methodology, her protocol and her technique. She found Dr. Treacy to be informal and intrusive in her interview. However, Dr. Treacy testified to her efforts to make W. feel comfortable, supported and safe. Dr. Treacy said that doing so did not make her interview a biased one nor did she encourage or push W. to state any particular fact or accusation. Nor could Dr. Piechowski state that W.'s more detailed account of the sexual abuse by Respondent S. in her interview with Dr. Treacy was not a result of her feeling more secure. Although Dr. Piechowski attacked the guidelines used by Dr. Treacy, there was no showing that these guidelines were unacceptable to experts in the field of child sexual abuse. Nor did Dr. Piechowski show that Dr. Treacy's administering of the intelligence test and trauma symptom checklist orally resulted in inaccurate results. In fact she acknowledged that Dr. Treacy's miscalculation in the intelligence test was insignificant. Dr. Piechowski acknowledged that she had never met W. and that she could not offer any opinion as to whether W. had been abused.
Dr. Piechowski stressed that Dr. Treacy did not sufficiently explore alternative hypotheses, especially the impact of W.'s encounter with her cousin Ramon a number of years before in Mexico. According to Dr. Treacy, W. herself did not attribute great significance to this encounter. Further, this encounter did not in any way undercut W.'s detailed and consistent account of her sexual abuse by Respondent S. .
Most importantly, Respondent S.'s theories that W. fabricated her report of sexual abuse by him because she missed living in Mexico or was struggling to succeed in school are without substantive basis and not borne out by the evidence. Throughout her interview, W. appeared very sad, reluctant and confused. She asked why Respondent S. would have done this to her and wished he had not. She talked about how sad she was that her revelation of sexual abuse had disrupted her family but that she knew he would continue to abuse her if she did not disclose the abuse. Respondent S. presented no evidence to refute the allegations made by W.. The court also notes that Respondent S. admitted to having pornographic material on his computer tablet, which W. had reported and described, but he denied showing it to her.
This court finds that Dr. Treacy's validation testimony more than meets the threshold of reliability that corroborative evidence must meet pursuant to Family Court Act § 1046 (a) (vi) and serves as a basis for the corroboration of W.'s prior out-of-court statements in that this validation testimony supports the reliability of W.'s prior statements and supports a finding, by a preponderance of the evidence, that Respondent S., a person legally responsible for the care of W., committed sex offenses against her as defined in Article 130 of the Penal Law.
Derivative Abuse Allegations
Petitioner ACS requests that the court enter a derivative finding as to W. P.'s sister, V. S., that she is a sexually abused child based on the finding of sexual abuse as to the subject child W.. V. was 5 years old and living in the home at the time of Respondent S.'s sexual abuse of W.. She was in the home while her mother was away in Mexico in October 2013, the time of the most recent sexual abuse incident. When W. disclosed the sexual abuse, she told the ACS caseworker that she feared that her sister was also vulnerable.
Family Court Act § 1046 (a) (i) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent." However, proof of neglect or abuse as to one child, does not, standing alone, establish a prima facie case of derivative neglect or abuse as to any other child (Matter of Amanda LL., 195 AD2d 708, 709 [3d Dept 1993]). The prior finding must be related to "ongoing conditions" (Matter of Department of Social Servs. v Manual S., 148 Misc 2d 988, 994 [Fam Ct, Dutchess County 1990]). The court must also consider " the nature of the direct abuse [or neglect,] notably its duration, the circumstances surrounding its commission and whether, on the whole, it can be said to evidence fundamental flaws in the respondent's understanding of the duties of parenthood ' " (Matter of Cadejah AA., 33 AD3d 1155, 1157 [3d Dept 2006] quoting Matter of Amanda LL., 195 AD2d 708, 709 [1993] citing Matter of Evelyn B., 30 AD3d 913, 914-915 [3d Dept 2006], lv denied 7 NY3d 713 [2006]).
This court finds that a finding of derivative neglect is warranted as to the child V.. Although V. was not a direct target of the abuse, Respondent S. perpetrated the abuse while V. lived in the apartment and V. was in the apartment when the abuse occurred. Respondent S.'s repeated sexual abuse of W. demonstrated impaired parental judgment and a flawed understanding of parental duties and created a substantial risk of harm for V. or any child in his care (see Matter of Dylan R. [Jeremy T.], 2016 NY Slip Op 02486 [3d Dept 2016] quoting Matter of Ramsey H. [Benjamin K.], 99 AD3d 1040, 1042, [3d Dept 2012], lv denied 20 NY3d 858 [2013] upholding derivative findings of neglect and abuse based on " respondent's repeated sexual abuse of [the stepchildren] demonstrates such an impaired level of parental judgment as to create a substantial risk for any child in his care . . . ' ").
Accordingly, the court finds by a preponderance of the evidence pursuant to Family Court Act § 1012 ( e ) (iii ) that Respondent E. S., the person legally responsible for the care of W. P., abused the child W. by committing sex offenses against her as defined in Article 130 of the Penal Law. The court further finds by a preponderance of evidence pursuant to Family Court Act § 1012 (f) (i) (B) that Respondent S. in committing sex offenses against the child W. while his daughter V. was in the household placed the child V. in imminent danger of harm and the child V. is a derivatively neglected child.
The court adjourns this matter for a dispositional hearing in this child sexual abuse proceeding.
This constitutes the decision and order of the court.
Notify counsel and the parties. E N T E R: Dated: Bronx, New York May 19, 2016 Carol R. Sherman, Judge Family Court Bronx County