In re Jaclyn P.

179 A.D.2d 646
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 13, 1992
StatusPublished
Cited by10 cases

This text of 179 A.D.2d 646 (In re Jaclyn P.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Jaclyn P., 179 A.D.2d 646 (N.Y. Ct. App. 1992).

Opinion

[647]*647Robert P. is the father of Melissa P. and Jaclyn P. In or about July 1990 the petitioner Nassau County Department of Social Services commenced proceedings against the respondent, alleging that he had sexually abused and neglected both daughters. Relevant to Melissa, the petition alleged, inter alia, that Robert P. had committed acts of digital penetration, and that he had placed his penis in Melissa’s mouth. After a fact-finding hearing, limited to the allegations of abuse pertaining to Melissa, the Family Court found that the petitioner had not met its burden of proof because the evidence was "absolutely even”. The court dismissed both the petitions alleging abuse of Melissa P. and Jaclyn P. On this appeal, the petitioner and the Law Guardian challenge the court’s findings which resulted in dismissal of the petition alleging abuse and neglect of Melissa. We find that the petitioner established that Melissa was an abused child, and we remit the matter to the Family Court, Nassau County, for a dispositional hearing.

The allegations of abuse of Melissa were based upon the child’s out-of-court statements as well as upon the statements of her sister Jaclyn. It is well settled that such out-of-court statements, if adequately corroborated by evidence tending to establish their reliability, may support a finding of abuse (see, Family Ct Act § 1046 [a] [vi]; Matter of Christina F., 74 NY2d 532; Matter of Nassau County Dept. of Social Servs. v Steven K., 176 AD2d 326). Corroboration may be provided via the "validation testimony” of experts regarding their investigations of the underlying complaints of abuse (Matter of Nassau County Dept. of Social Servs. v Steven K., supra; Matter of Linda K., 132 AD2d 149). Thus, sufficiently corroborated out-of-court statements may suffice to provide the requisite preponderance of the evidence by which the petitioner must establish its case (see, Matter of Nicole V., 71 NY2d 112; Matter of Latisha V., 175 AD2d 839).

At the fact-finding hearing, Melissa’s mother testified that she first became aware of a problem in November 1989 when her niece and her daughter Jaclyn both reported, within approximately one week of one another, that Melissa had hurt each of them by placing her fingers inside their vaginas. When confronted, Melissa reported that she had been "playing the doctor game” taught to her by her father, the respondent. The mother testified that Melissa demonstrated this game by "vigorously” placing her fingers between the legs of a doll. Melissa’s mother also testified that Melissa reported to [648]*648her that her father had taught her "the weenie game” in which her father placed his penis in Melissa’s mouth. Furthermore, the witness stated that Melissa was exhibiting behavioral problems such as wetting herself and that she was suffering from nightmares. Alarmed, Melissa’s mother contacted the police and the New York State Child Protective Services (hereinafter CPS).

Pursuant to the recommendation of CPS personnel, Melissa was taken to see Yael Layish, a psychiatric social worker who serves on the "family crisis team” of North Shore University Hospital. Ms. Layish, who recounted her credentials in the field of child sex abuse and whose competence this court has previously acknowledged (see, Matter of Nassau County Dept. of Social Servs. v Steven K., 176 AD2d 326, 327, supra), testified that she first examined Melissa in December 1989. After introductory sessions to acquaint Melissa with anatomically-correct dolls, Melissa reported, and demonstrated to Ms. Layish, how, after undressing her, the respondent placed his fingers in her rectum and vagina, exposed his penis for Melissa to touch, and how he placed his penis in Melissa’s mouth. Melissa told Ms. Layish that she wanted her father to stop playing the doctor game. Ms. Layish recounted other incidents during her therapy sessions with Melissa, and she detailed the five phases of child sex abuse syndrome. Upon consideration of all of the foregoing, Ms. Layish testified that, in her opinion, Melissa was acting in a manner consistent with that of a sexually abused child. She did not believe that Melissa had been "coached” into making these allegations.

CPS caseworker Debra Ross testified that she saw Melissa twice monthly for a total of 25 visits. On one such visit, Melissa reportedly described the "doctor game” to Ms. Ross, demonstrating it by trying to "poke” her fingers between the legs of a stuffed animal. Melissa reportedly told Ms. Ross that the respondent touched her in the same manner. When Ms. Ross tried to inquire further, Melissa ran from the room, carrying the stuffed animal. Melissa reportedly told Ms. Ross that she was afraid to be left alone with her father.

Dr. Bruce Bogard, a pediatrician at Schneider’s Children’s Hospital of Long Island Jewish Medical Center, testified that he examined Melissa on February 9, 1990, for physical signs of sexual abuse. His rectal examination of Melissa disclosed nothing unusual, and her external genital structures were normal, showing no evidence of trauma. Her hymenal opening, however, measured seven millimeters. Dr. Bogard explained that generally, the hymenal opening in a normal [649]*649prepubertal child is less than five millimeters. Melissa’s larger hymenal opening, Dr. Bogard testified, was consistent with sexual abuse but not necessarily indicative of abuse. Dr. Bogard explained, however, that sexual abuse may occur without resulting in physical findings and that digital penetration could occur without leaving a mark on the hymen. He stated that a finding of a hymenal opening greater than 10 millimeters would be more indicative of abuse, but that an opening of seven millimeters fell within a borderline area.

Dr. Howard Kirschen, a board-certified child psychiatrist, testified that he interviewed and evaluated Melissa, as well as Melissa’s mother, father and younger sister Jaclyn. Dr. Kirschen testified that both parents exhibited personality disorders, and that Melissa was "an overall troubled child”. Dr. Kirschen acknowledged that there was a possibility that Melissa had been "coached” into making false allegations against her father, and he acknowledged his reliance upon various reports of others involved in the investigation, including that of Ms. Layish indicating that Melissa had been abused. Nevertheless, it was Dr. Kirschen’s opinion that Melissa showed signs consistent with being a victim of sexual abuse.

Testifying for the respondent, Dr. Mark Rich, a pediatric urologist, stated that he examined Melissa and found no physical evidence of sexual abuse. Dr. Rich stated that he found Melissa’s genitalia to be normal, without any signs of physical abuse or trauma, and that the size of Melissa’s hymen "was not particularly out of the norm of what a normal little girl that age would have * * * approximately one finger breadth”. Dr. Rich conceded, however, that physical evidence of abuse is "often” not present in victims of abuse and that the absence of such evidence does not rule out a finding of sex abuse.

Tracy Grossman, a consultant psychologist at the Nassau County Department of Forensic Services interviewed Melissa in February 1990 in connection with her parents’ custody dispute. Dr. Grossman, whose inquiry was primarily directed at ascertaining Melissa’s feelings about visitation with each of her parents, stated that Melissa showed no evidence of sexual abuse during the one session they were together; however, neither could Dr. Grossman rule out that such abuse had occurred.

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Bluebook (online)
179 A.D.2d 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jaclyn-p-nyappdiv-1992.