In re April WW.

• Decision Date: 25 November 2015
• Citation: 21 N.Y.S.3d 379,133 A.D.3d 1113
• Parties: In the Matter of APRIL WW. and Another, Alleged to be Neglected Children. Delaware County Department of Social Services, Respondent; Kimberly WW., Appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 1113

21 N.Y.S.3d 379

In the Matter of APRIL WW. and Another, Alleged to be Neglected Children. Delaware County Department of Social Services, Respondent; Kimberly WW., Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 25, 2015.

Teresa C. Mulliken, Harpersfield, for appellant.

D. Jeremy Rase, County Attorney, Delhi, for respondent.

Larisa Obolensky, Delhi, attorney for the children.

Before: PETERS, P.J., GARRY, ROSE and CLARK, JJ.

Garry, J.Appeals from two orders of the Family Court of Delaware County (Becker, J.), entered January 10, 2014 and May 20, 2014, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate respondent's children to be neglected.

Respondent is the mother of a son and daughter (born in 2002 and 2009, respectively) who were removed from her custody in December 2012 based upon allegations that the daughter had been sexually abused. Petitioner commenced this neglect proceeding alleging that respondent had provided the children with inadequate guardianship and supervision by, among other things, residing with the children in the household of an adjudicated sex offender and permitting the children to associate with certain other individuals who were suspected or adjudicated to be sexual offenders despite a safety plan precluding such contact. Following a fact-finding hearing, Family Court determined, in a January 2014 order, that respondent had neglected the daughter by permitting her to be sexually abused by an unknown perpetrator and that the son had been derivatively neglected. After a dispositional hearing, the court, by order entered in May 2014, continued the children's placement in petitioner's custody. Respondent appeals.

At the fact-finding hearing, a caseworker testified that the daughter had never made any disclosures of sexual abuse, but that respondent had been living with the son and daughter for about a year and a half in the home of the maternal grandmother's paramour, a risk level III sex offender. After petitioner received an anonymous hotline report that the paramour had sexually abused the daughter, her treating physician and an emergency room nurse conducted sexual assault examinations. Both of these practitioners testified that, in their professional opinions, the daughter had been sexually abused. Respondent testified on her own behalf that she had never permitted the daughter to be alone with the paramour, and respondent's expert pediatrician testified that he found no evidence of sexual abuse in the daughter's medical records or the examination reports of petitioner's experts. Family Court rejected the conclusions of respondent's expert and found that the daughter had been sexually abused and neglected based upon the opinions of petitioner's experts.

Upon appeal, respondent and the attorney for the children contend that neither the treating physician nor the nurse should have been permitted to testify as experts on the issue of child sexual abuse, as neither possessed the skill, training or experience to give a professional opinion as to the question of whether the daughter had been sexually abused. Before admitting expert testimony, a court must determine whether a proposed expert "possess[es] the requisite skill, training, education, knowledge and/or experience to qualify as [an] expert[ ] on the [particular matter at issue] ... in light of prevailing professional standards" (Hurrell–Harring v. State of New York, 119 A.D.3d 1052, 1053, 990 N.Y.S.2d 286 [2014] ; see Matter of Nicole V., 123 A.D.2d 97, 108, 510 N.Y.S.2d 567 [1987], affd. 71 N.Y.2d 112, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ). Whether to admit the testimony of an expert witness "is generally left to the trial court's discretion" (Matter of Angelo AA. [Tashina DD.], 123 A.D.3d 1247, 1250, 999 N.Y.S.2d 199 [2014] ).

The treating physician, who was board-certified in family medicine, had participated in general training in child sexual abuse and completed one sexual assault examination of a child during a residency that she had completed 15 years earlier. Thereafter, she had never participated in any additional pediatric sexual abuse training, nor had she conducted any additional pediatric sexual assault examinations prior to the examination of the daughter. The physician had treated the daughter since shortly after her birth and had seen her on about 20 previous occasions at the time that respondent brought her in for a sexual assault examination, stating that child protective authorities had wrongly alleged that the daughter had been sexually abused. Confronted with this concern, the physician sought guidance from a colleague who was an experienced pediatrician to "affirm what I believed was the correct way to examine a child," and the pediatrician advised her on the procedures to follow during the examination, including instructing her how to position the child and to perform certain tests that the physician would not otherwise have "felt comfortable doing."¹ Upon conducting an examination, the physician made various observations that led her to conclude that there was a "[h]igh probability" that the daughter had been sexually abused.

The written report completed by the treating physician following this examination was submitted into evidence. There were notable discrepancies between the physical findings set forth in the report and those described in her testimony. During cross-examination, the physician acknowledged that she did not know the meaning of certain terms that were used by the other two expert practitioners. The physician further acknowledged that she had no experience other than the single prior child sexual assault examination that she had performed many years before upon which to premise various conclusions she had drawn. Notably, these conclusions were the sole basis of her professional opinion that the daughter had been sexually abused.

As there was no objection made relative to the treating physician's qualifications at trial, the parties have "waived appellate review regarding the admissibility of this testimony" (Matter of Kaitlyn R., 267 A.D.2d 894, 896, 700 N.Y.S.2d 533 [1999] ). We ascribe no error to Family Court's failure to make a sua sponte finding that the expert was not qualified. Nevertheless, in light of the physician's limited training and lack of experience in pediatric sexual abuse, we find that the probative value of her testimony as to whether the child had been sexually abused was low, and her opinion was thus entitled to little weight (see generally Matter of Julia BB. [Diana BB.], 42 A.D.3d 208, 222, 837 N.Y.S.2d 398 [2007], lvs. denied 9 N.Y.3d 815, 849 N.Y.S.2d 31, 879 N.E.2d 171 [2007] ).

The challenge to the qualifications of the registered nurse was properly preserved by respondent's objections during the course of the fact-finding hearing. Voir dire revealed that the nurse was licensed as a registered nurse, had practiced as an emergency room nurse for 17 years and was certified in emergency room medicine as well as other specialties, but lacked certification as a sexual assault nurse examiner (hereinafter SANE). The nurse testified that she had participated in two SANE trainings but had not yet completed all of the requirements for certification. She had performed several sexual assault examinations in the course of her career, approximately three of which had involved females under the age of five. Although the nurse's training and experience were limited (compare People v. Morehouse, 5 A.D.3d 925, 928, 774 N.Y.S.2d 100 [2004], lv. denied 3 N.Y.3d 644, 782 N.Y.S.2d 416, 816 N.E.2d 206 [2004] ), we do not find that her credentials were so inadequate that it was an abuse of discretion for Family Court to permit her to testify as an expert. Instead, the nurse's lack of SANE certification and limited pediatric sexual abuse experience were factors affecting the weight to be given to her professional opinion (see People v. Lashway, 112 A.D.3d 1222, 1223–1224, 978 N.Y.S.2d 388 [2013] ).

In contrast to the limited qualifications of petitioner's experts, respondent's expert pediatrician, Aaron J. Miller, was highly qualified.² Miller testified that he is board-certified in general pediatrics and child abuse pediatrics, that he took child abuse electives in medical school and again during his residency, and that he was thereafter trained in the performance of pediatric sexual assault examinations while working in a hospital child advocacy center. Miller testified that he had evaluated a total of nearly 1,400 children for suspected sexual abuse, approximately 350 of whom were females under the age of five. He had been qualified as an expert in child abuse pediatrics in approximately 60 previous Family Court and criminal cases.³

Miller testified that, in his professional opinion, the medical findings were not suggestive of sexual abuse and the opinions of the nurse and physician to the contrary were incorrect. Miller did not personally conduct an examination of the daughter, but testified that photographs taken by the nurse were sufficiently clear to permit him to draw "confident conclusions." He testified as to the physical findings revealed in these photographs, describing his review and conclusions in detail in the course of his testimony, and opined...