In re Wendy P.

• Decision Date: 30 January 2015
• Parties: In the Matter of WENDY P. and Valeria S., Children under the Age of Eighteen Years Old Alleged to be Neglected by Edwin S., Respondent.
• Court: New York County Court

16 N.Y.S.3d 795 (Table)

In the Matter of WENDY P. and Valeria S., Children under the Age of Eighteen Years Old Alleged to be Neglected by Edwin S., Respondent.

Family Court, Bronx County, New York.

Jan. 30, 2015.

Zackary Carter, Corporation Counsel, Alan W. Sputz, Esq., Special Assistant Corporation Counsel, Administration for Children's Services, Family Court Legal Services, (by Tiffany Wichman, Esq.), Bronx.

The Legal Aid Society, Juvenile Rights Practice, Bronx, Attorney for the Children, (by Michelle Domena, Esq.).

The Bronx Defenders–Family Defense Practice, Bronx, counsel for Respondent Father/PLR, (by Patrick T. Clark, Esq. and Milinda Kakani, Esq.).

Opinion

CAROL R. SHERMAN, J.

On August 25, 2014, the Respondent Father/Person Legally Responsible (PLR), Edwin S., in this child abuse proceeding pursuant to Article 10 of the Family Court Act (“FCA”) filed October 21, 2013, filed a motion requesting that the court preclude from evidence at the fact-finding hearing the testimony of Dr. Eileen Treacy, the forensic evaluator retained by the Administration for Children's Services (“ACS”), or in the alternative, to hold a Frye hearing as to the admissibility of Dr. Eileen Treacy's testimony and written report.

Factual Background

On October 21, 2013, the Administration for Children's Services (hereinafter “ACS”) filed petitions pursuant to Article 10 of the Family Court Act alleging that the Respondent Father/PLR, Edwin S., who is the biological father of Valeria S. (age 10) and person legally responsible for the child Wendy P. (age twelve), committed or allowed to be committed a sexual offense against the subject child, Wendy P., as defined in Articles 130.52, 130.55, 130.60, 130.65, and 130.80 of the Penal Law. The petitions stated the following:

“WENDY P. and VALERIA S. are children under the age of eighteen whose parent EDWIN S. father of the subject child Valeria and a person legally responsible for the care of the subject child Wendy, 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:

1. According to the respondent father EDWIN S., the subject child Valeria is his biological daughter and he is the step-father of the subject child Wendy. Upon information and belief, the Respondent is a person legally responsible for the care of WENDY 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 EDWIN S. committed sexual offenses against the subject child WENDY P. as defined in Article 130.42, 130.55, 130.60, 130.65, 130.80 of the Penal law :

a.On or about October 17, 2013, the subject child Wendy 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 the 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 a 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 Wendy 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 WENDY P., the subject child VALERIA S. is an abused child.”

The court commenced a fact-finding hearing on June 24, 2014 with the testimony of ACS caseworker, Yocasta Del Rosario, which continued on September 23, 2014 and September 30, 2014.On August 25, 2014, the Attorney for the Respondent Father/PLR filed the within motion requesting that the court preclude the expert validation testimony of Eileen Treacy, Ph.D., or in the alternative, hold a Frye hearing as to its admissibility. The Respondent Father/PLR claimed that validation testimony does not meet the “general acceptance” standard for the admission of scientific evidence because it was based upon the theory of “sexually abused child syndrome” which is no longer an accepted diagnosis in the scientific community and/or that Dr. Treacy's opinion is not reliable since she failed to follow accepted protocols for interviewing and evaluating children and her assessments were faulty. Attached to the Respondent Father/PLR's motion is a memorandum of law, the American Professional Society on the Abuse of Children Practice (“APSAC”) Guidelines, (Respondent's Exhibit “A”), New York State Children's Justice Task Force Forensic Interviewing Best Practices (“NYSFIBP”) Guidelines (Respondent's Exhibit “B”), Report by John C. Yuille, Ph.D. dated August 11, 2014, APSAC Psycho-social Evaluation of Suspected Sexual Abuse in Children (Respondent's Exhibit “C”), and “Sexual Abuse Assessment—Summary Report” by Eileen C. Treacy, Ph.D. dated May 15, 2014 (Respondent's Exhibit “D”).

On October 1, 2014, ACS filed an affirmation in opposition to the motion, claiming that the methodology used by proposed expert Dr. Eileen Treacy is generally accepted within the scientific community, Dr. Treacy's expert opinion did not present a novel question, and therefore Dr. Treacy's testimony is not subject to a Frye hearing. Additionally, ACS claimed that any challenges to the expert's purported departures from protocols is an issue for the court to determine at trial and goes toward the weight the court affords the evidence, not its admissibility. Attached to the affirmation in opposition is Dr. Treacy's curriculum vitae (Petitioner's Exhibit “A”), Dr. Treacy's Affidavit in response to the issues raised by Dr. Yuille (Petitioner's Exhibit “B”), Dr. Treacy's report dated May 15, 2014 (Petitioner's Exhibit “C”), an excerpt of Dr. Yuille's testimony from the transcript of a criminal trial in Suffolk County, whose caption has been redacted (Petitioner's Exhibit “D”).

On October 1, 2014, the Attorney for the Children filed an affirmation in opposition to the motion, stating that there was no basis for a Frye hearing or to exclude the report and testimony of Dr. Treacy, and the issues raised by the Respondent Father/PLR should be determined by the court at the fact-finding hearing.

On October 31, 2014, the Respondent Father/PLR filed a reply in support of the motion.

LEGAL ANALYSIS

Pursuant to the special discovery rules in child protective matters, a child who is the subject of an Article 10 child protective proceeding may be made available for an examination by a physician, psychologist or social worker selected by the party or the child's attorney to assist in the preparation of the trial (see FCA § 1038[c] ; CPLR § 3101[d] ). Additionally, a child may be interviewed by a physician, psychologist or social worker “for the purposes of offering expert testimony to a court regarding the sexual abuse of the child,” as such term is defined by Family Court Act § 1012[e]. (FCA § 1038[c] ; see Uniform Rules for Fam Ct [22 NYCRR] § 205.86 ). In the present matter, in accordance with FCA § 1038[c], ACS arranged for the subject child, Wendy P., to be evaluated by Eileen Treacy, Ph.D. for a sexual abuse assessment. Id. Accordingly, counsel received a copy of Dr. Treacy's “Sexual Abuse Assessment–Summary Report” (hereinafter “report”) dated May 15, 2014 and DVD's of Dr. Treacy's interviews of Wendy. ACS informed the court and counsel that it intended to call Dr. Treacy as an expert witness to provide validation testimony to corroborate Wendy's out-of-court statements made to caseworker, Yocasta Del Rosario.

Only “competent, material and relevant evidence” may be admitted in an Article 10 child protective proceeding at the fact-finding hearing (FCA § 1046[b] [iii] ). However, Family Court Act § 1046 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. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration. The testimony of the child shall not be necessary to make a fact-finding of abuse or neglect.” FCA § 1046[a] [vi] ).

Corroboration is not required because the 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.” Matter of Nicole V, 71 N.Y.2d 112, 118 [1987]reh denied sub nom. In Re Frances Charles W., 71 N.Y.2d 890 [198

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