In re Nicole V.

123 A.D.2d 97, 510 N.Y.S.2d 567, 1987 N.Y. App. Div. LEXIS 39807
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 8, 1987
StatusPublished
Cited by39 cases

This text of 123 A.D.2d 97 (In re Nicole V.) 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 Nicole V., 123 A.D.2d 97, 510 N.Y.S.2d 567, 1987 N.Y. App. Div. LEXIS 39807 (N.Y. Ct. App. 1987).

Opinion

OPINION OF THE COURT

Carro, J.

On July 6, 1984, a child protective proceeding was commenced, pursuant to Family Court Act article 10, by the filing of a petition alleging that the respondent, Larry V., sexually abused his 3 !A-y ear-old daughter Nicole within the meaning of the Penal Law. A fact-finding hearing was held on January 17, 1985 and February 14, 1985. Petitioner, Department of Social Services, presented three witnesses: Nicole’s mother, Linda V.; Sharan Champ, Nicole’s caseworker; and Patricia Lemp, Nicole’s therapist.

Ms. Champ, a Special Services for Children caseworker, interviewed Nicole on July 5, 1984. Nicole told Ms. Champ about games she played with her father in the bathroom of his parents’ home during overnight visits with him. Nicole’s mother and respondent were separated and respondent had overnight visitation of Nicole at his parents’ home on weekends. Nicole explained to Ms. Champ that she and respondent would do "cocky” and then she would get down on all fours and play like "Hobo,” the family dog. According to Nicole, respondent would then "put white paste on me, on my mouth and all over me.” Nicole told Ms. Champ that he put the paste [99]*99around her "chach,” which she indicated was her name for her genital area. When asked where the white paste came from, Nicole answered that it came from her father, and she again pointed to her genital area to show from what part of his body the "paste” came. When asked if she had ever played such games with anyone else, Nicole replied: "no one else.”

Pat Lemp, a certified social worker, was qualified, without objection, as an expert in counseling sexually abused children. Ms. Lemp holds a bachelor’s degree in "deviant behavior and social control” from John Jay College of Criminal Justice and a Master’s degree in social work from Columbia University. At the time of the hearing, Ms. Lemp was director of the Bronx community office of the Victim Services Agency and had been treating sexually abused children for 2 x/i years. She was also the chairperson of the education committee of the New York City Task Force Against Sexual Abuse. By the time of the hearing, Ms. Lemp had been counseling Nicole for over four months, usually on a weekly basis, and had seen Nicole approximately 10 times.

Ms. Lemp’s professional opinion was that Nicole had been sexually abused, an opinion based on Nicole’s statements and observations of her behavior during therapy sessions. The beginning of the therapy was marked by Nicole’s withdrawn behavior. As the therapy progressed, Nicole related the "secret games” she played with her father. Ms. Lemp testified: "One of the things that [Nicole] told me is that her daddy put glue in her mouth. And, again when I asked her to be more specific about it she said—I asked her where did the glue come from and she said, 'From down here,’ indicating her own genitals. And I said 'from you Nicole?’ And she said, 'No, from my daddy down there.’ She also talked about her daddy touching her in the places where he shouldn’t have touched her indicating the area of her genitals, her chest, her buttocks.” Nicole often discussed these events with Ms. Lemp and never contradicted her story.

The behavioral signs Ms. Lemp noted in Nicole, which she testified were symptomatic of a sexually abused child, included: knowledge of sexual activity beyond the child’s developmental stage; extreme anger and depression; bed-wetting; and sleep disturbances and nightmares involving her father. Ms. Lemp witnessed several temper tantrums during which Nicole pulled her hair and hit herself, actions Ms. Lemp characterized as being substantially more severe than those of other children Nicole’s age. When asked why she felt so [100]*100angry, Nicole stated: "I feel so angry about what my daddy did to me.” After one of these temper tantrums, provoked because the elastic cuffs on her shirt were too tight, Nicole told Ms. Lemp that her father tied her wrists with her jump rope when "he played the bad games.” On another occasion, when asked why she would not allow herself to be photographed, Nicole answered that when her father played the games, "he took bad pictures, but the camera did not work.”

Based on her study and treatment of children, Ms. Lemp opined that a child of Nicole’s age would be unlikely to fantasize about or fabricate sexual activity, since "there needs to be a basis in reality for a child of the age of three and a half to come up with details of sexual experience.” She also observed that children of that age are unable to lie consistently over a period of time to several people.

Nicole’s mother testified that Nicole was 2 Vi years old when she and her husband separated in 1983, by which time Nicole was fully toilet trained. The separation did not cause Nicole to regress in her toilet training. Yet, about the beginning of 1984, Nicole began to wet her bed. The bed-wetting would occur in the beginning of the week, after Nicole’s weekend visits with her father. Nicole also became prone to vaginal rashes, which also consistently appeared after weekend visits. On one occasion,, after Nicole’s return from a visit with her father, Nicole’s mother noticed blood on the washcloth after washing Nicole’s vaginal area. Upon asking respondent what had happened to Nicole, respondent said she had gotten a splinter, although an external examination of the child did not reveal anything of this nature. Nicole’s mother also noticed that Nicole exhibited some apprehension about going with her father on overnight visits.

It was on June 28, 1984, while on vacation in Florida, that Nicole told her mother of the "games” her father played with her. On that day, Nicole’s uncle was babysitting her, that being the first time Nicole was left alone with any male other than her father. Nicole told her uncle that she "wanted to play a secret game” with him that she played with her father. When Nicole’s mother returned to her sister’s house, she was told what Nicole had said. Nicole’s mother then had a conversation with Nicole in which Nicole related that her father told her he would give her a "very bad spanking” and "kill her” if she told anyone of their secret game. After assuring her that no one would hurt her, Nicole told her mother that her father "put his chach (phonetic) in her chach (phonetic)” and that [101]*101"she had glue in her mouth and the glue was running in her ear.” Upon returning home, Nicole’s mother immediately filed a report of suspected child abuse.

Respondent denied all accusations and even denied ever having been alone with his daughter in his parents’ home for more than a few minutes. He admitted only to having applied Desitin and suntan lotion to Nicole. He had no idea how Nicole might associate "white paste” as something coming from his genital area.

The trial court determined that Nicole’s statements made out a case of sexual abuse in the first degree as defined in Penal Law § 130.65 and that her testimony was sufficiently corroborated by the testimony of Ms. Lemp, Nicole’s behavioral patterns, the mother’s finding of blood on a washcloth and the introduction of a hospital report confirming that Nicole had no hymen.

At a dispositional hearing, held June 28, 1985, the court entered an 18-month order of protection against Lawrence V., prohibiting him from visiting Nicole in her home for 18 months, but permitting supervised visitation, to be arranged by Special Services for Children, "if and when appropriate.”

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Bluebook (online)
123 A.D.2d 97, 510 N.Y.S.2d 567, 1987 N.Y. App. Div. LEXIS 39807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nicole-v-nyappdiv-1987.