In re Arrigo

132 Misc. 2d 113, 503 N.Y.S.2d 485, 1986 N.Y. Misc. LEXIS 2647
CourtNew York Family Court
DecidedMay 6, 1986
StatusPublished
Cited by2 cases

This text of 132 Misc. 2d 113 (In re Arrigo) is published on Counsel Stack Legal Research, covering New York Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Arrigo, 132 Misc. 2d 113, 503 N.Y.S.2d 485, 1986 N.Y. Misc. LEXIS 2647 (N.Y. Super. Ct. 1986).

Opinion

OPINION OF THE COURT

H. Patrick Leis, III, J.

The Department of Social Services (DSS) initiated this proceeding by filing a petition alleging that the respondent sexually abused his two-year, nine-month-old son Anthony and his four- and one-half year-old son Robert. The respondent alleg[114]*114edly masturbated on his sons and had his sons pull on his penis.

At the fact-finding hearing the mother and two caseworkers for the Department of Social Services testified that Robert made the statements contained in the petition. Robert was not called as a witness. The statements were admitted pursuant to Family Court Act § 1046 (a) (vi) which reads as follows: "[Previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact-finding of abuse or neglect”.

The issue, which must be addressed, is whether or not the children’s statements were corroborated.

The following have been held to be sufficient corroboration of a child’s statement admitted pursuant to Family Court Act § 1046 (a) (vi): (1) An admission by the respondent (even if retracted) (Matter of Margaret W., 83 AD2d 557 [2d Dept 1981]); (2) sworn testimony of others (adults and children) (Matter of Hawkins, 76 Misc 2d 738 [Fam Ct, NY County 1974]); (3) medical evidence (People v De Berry, 76 AD2d 933 [2d Dept 1980]); (4) presence of a sexually transmitted disease (Matter of Tara H., 129 Misc 2d 508 [Fam Ct, Westchester County 1985]); (5) an out-of-court statement by one child, if duly corroborated (by father’s admission), can corroborate an out-of-court statement by another child (Matter of Cindy JJ., 105 AD2d 189 [3d Dept 1984]); (6) "in camera” interview (Matter of Dana F., 113 AD2d 939 [2d Dept 1985]).

The following have been held to be corroborative when combined with other evidence: (1) Validation interview (Matter of Tara H., 129 Misc 2d 508 [Fam Ct, Westchester County 1985], supra); (2) changes in the child’s behavior after the alleged incident (Matter of Michael G., 129 Misc 2d 186 [Fam Ct, Westchester County 1985]); (3) changes in the child’s behavior since his removal from the respondent (Matter of Michael G., supra). There are no reported cases, however, where these methods of corroboration standing alone were found to be sufficient.

In this case the only evidence offered as corroboration of the child’s out-of-court statements is as follows: (1) validation interview; (2) credibility of the witnesses to whom the statements were made; (3) the observed behavior of the children; and (4) results of a psychologist’s exam conducted on the respondent (made in connection with an earlier visitation application).

[115]*115Validation is the process by which an expert confirms or fails to confirm the existence of " 'intrafamilial child sex abuse syndrome’ ” (see, Matter of Michael G., supra, at p 192).

Tara H. and Michael G. (both written by Judge Sondra Miller) are the only New York cases holding that validation can be a source of corroboration. In fact, in Matter of Fawn S. (128 Misc 2d 186, 189 [Fam Ct, Queens County 1985]), which appears to be on all fours with the facts in this case, Judge Gilman specifically rejected validation as a means of corroboration, holding "The psychologist’s testimony is insufficient corroborative evidence. It is not based upon information received from an independent source that connects the respondent with the commission of the abusive act. The psychologist’s testimony was derived solely from out-of-court observations and statements of the child.” It should be noted that in Fawn S. the child testified to the facts alleged in the petition (although she could not be sworn).

Although the court in Tara H. (supra) felt that validation was a proper source of corroboration, it did not base its finding of corroboration solely on validation. In Tara H., the court held that petitioner’s prima facie case was established by the fact that five-year-old Tara contracted infectious gonorrhea while in the custody of her father, which condition was not satisfactorily explained by him. The court also conducted an in camera interview with the child during which the child reaffirmed the alleged sexual contact.

In Matter of Michael G. (supra) the court does not rely on any one factor as corroboration but finds corroboration from a number of things, such as: (1) observed behavior of the child; (2) change in the child’s behavior; (3) medical evidence of swollen, irritated penis and trauma to anus; (4) credibility of witnesses to whom the statements were made; and (5) validation interview. In no reported case was validation alone held to be sufficient corroboration.

In an attempt to provide validation of Robert’s statements (no attempt was made to validate Anthony’s statements), the county called Dr. Rosenfeld, a noted expert in the field. Even though Dr. Rosenfeld spent over six hours on several occasions with Robert, the child would not say that anything occurred between himself and his father. Robert stated that "my father said nothing had happened, so that must be true, nothing happened”. When confronted with his mother’s statement that his father had masturbated on him (the child referred to it as [116]*116pee pee), Robert stated that he made up a story. Robert did tell Dr. Rosenfeld that something bad had happened and he could not tell anyone what it was. But at no point would Robert say what this bad thing was nor could Dr. Rosenfeld indicate (from this conversation) that it was even sexual in nature. After interviewing Robert, Mrs. Arrigo, and the respondent, Dr. Rosenfeld did conclude that someone had masturbated on Robert and although the respondent denied it, it was probably him. This belief was based on Dr. Rosenfeld’s opinion that Mrs. Arrigo lacked the sophistication to coach the child to fabricate such a story.

This court was impressed by Dr. Rosenfeld’s candor and honesty. The doctor does not, however, provide validation. Even if validation by itself could be corroboration, its purpose is to allow an expert to confirm or fail to confirm the existence of "intrafamilial child sex abuse syndrome”. Dr. Rosenfeld did not testify as to any cluster of behaviors displayed by Robert that are identified with children who have been sexually abused. Here, Dr. Rosenfeld found that Robert interacted with his father but remained somewhat aloof, which he admits could have been caused by the interview process. Dr. Rosenfeld also states that he would have to revise his opinion if it were determined that the reports which he bases his opinion on (since Robert would not discuss the incident with him) were improperly collected or inaccurate. Finally, Dr. Rosenfeld stated that it is impossible for him to determine if someone other than Mr. Arrigo could be responsible for the alleged sexual abuse.

The weight to be given to the interview as corroboration will depend upon the strength of the validation. (Matter of Tara H., 129 Misc 2d 508, 514, supra.) In this case the validation is weak and does not provide sufficient corroboration of the child’s statement. It should also be noted that Robert was examined by a pediatrician but the exam provided no evidence of sexual abuse.

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Related

People v. Berrios
150 Misc. 2d 229 (New York Supreme Court, 1991)
In re Leslie K.
132 A.D.2d 149 (Appellate Division of the Supreme Court of New York, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
132 Misc. 2d 113, 503 N.Y.S.2d 485, 1986 N.Y. Misc. LEXIS 2647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-arrigo-nyfamct-1986.