In re Jaclyn P.

658 N.E.2d 1042, 86 N.Y.2d 875, 635 N.Y.S.2d 169, 1995 N.Y. LEXIS 3572

Opinions

OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

In this child protective proceeding, petitioner Department of Social Services commenced proceedings against respondent father alleging that he had sexually abused and neglected his two young daughters, Melissa and Jaclyn. At a hearing before Family Court, the children’s mother testified that her daughter Melissa had described repeated incidents of respondent’s abuse of both children. Several medical doctors and mental health professionals who had examined one or more of the family members testified that there were no physical signs of abuse and that they were unable to confirm or refute the allegation that Melissa had been abused by her father.

The "validation” testimony (see, Matter of Nicole V., 71 NY2d 112) was provided by Yael Layish, a certified social worker who had interviewed Melissa extensively, using anatomically correct dolls and a technique called the "Sue White protocol.” Layish ultimately obtained detailed descriptions from Melissa of incidents of abuse that had been directed against her and her sister. Based on her professional judgment, Layish concluded that these descriptions were accurate and reliable.

Respondent testified on his own behalf and denied sexually abusing his daughters. His mother, who had supervised the children’s visits with their father, testified that Melissa never complained to her of any problems with respondent. A psychologist and family therapist hired by respondent testified, from two observations of the children and their father, that the allegations of abuse were unfounded.

Family Court dismissed the abuse and neglect petition, declaring simply that "the evidence was absolutely even.” On appeal, however, Family Court’s order was reversed by the Appellate Division which, after evaluating the testimony of each witness (179 AD2d 646), concluded that Layish’s testimany, along with the other evidence, provided a sufficient ground for a finding of abuse. The court found Layish’s testimony "highly reliable” and respondent’s evidence "unpersuasive” (179 AD2d, at 651, 652), and determined that the evidence preponderated in favor of the presentment agency (see, Family Ct Act § 1046; Matter of Tammie Z., 66 NY2d 1, 3). After a dispositional hearing, respondent took the present appeal by permission of this Court.

On the central legal question presented by this appeal, we conclude that the weight of the evidence more closely comports with the Appellate Division’s determination (see, CPLR 5501 [b]; see also, Matter of Shelia G., 61 NY2d 368, 386; Matter of Hime Y., 54 NY2d 282, 286). Layish’s testimony corroborated the child’s out-of-court statements of abuse and, along with the other evidence presented, provided sufficient support for a finding of abuse against respondent, even though the acts charged by their nature did not result in physical injury such as that found in Nicole V. Respondent’s remaining contentions are either without merit or unpreserved.

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Contrary to the dissent, the trial court found Layish qualified as an expert in "child sexual abuse” as well as qualified to corroborate Melissa’s out-of-court statements. The Appellate Division affirmed and we find no error of law. Moreover, in that no objection was made to Layish’s testimony regarding her use of anatomically correct dolls, we cannot and do not pass on that technique. The legal arguments now raised by the dissent and by appellant were not presented at the trial level.