In re R./M. Children

165 Misc. 2d 441, 627 N.Y.S.2d 869, 1995 N.Y. Misc. LEXIS 255
CourtNew York City Family Court
DecidedApril 20, 1995
StatusPublished
Cited by5 cases

This text of 165 Misc. 2d 441 (In re R./M. Children) is published on Counsel Stack Legal Research, covering New York City 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 R./M. Children, 165 Misc. 2d 441, 627 N.Y.S.2d 869, 1995 N.Y. Misc. LEXIS 255 (N.Y. Super. Ct. 1995).

Opinion

OPINION OF THE COURT

Philip C. Segal, J.

At issue in this child protective proceeding is the adequacy of the trial foundation laid by petitioner to support the admission of validation evidence intended to substantiate the claim that the subject children suffer from sexual abuse syndrome (see, Matter of Nicole V., 71 NY2d 112 [1987]). As follows, the court finds that petitioner failed to establish the expertise of her proffered validator and further failed to establish that the validator’s assessment comported with the specific procedures accepted as reliable within the field (see, People v Wesley, 83 NY2d 417 [1994]). Accordingly, the court concludes that the evidence petitioner offers is not reliable; on that basis, it is excluded.

I

To determine the above issues, a separate hearing was conducted (see, CPLR 4011). At that hearing, petitioner’s validation witness, Dr. Mary Beth Andrews, testified.

Dr. Andrews stated that she holds three degrees: a Bachelor of Arts in psychology, received from Molloy College in 1980; a Master of Science in occupational therapy, received from Columbia University in 1982; and a Doctor of Philosophy in clinical psychology, received from St. John’s University in 1992. According to Dr. Andrews, she initially was licensed to practice clinical psychology in October 1993. To date, her sole professional experience has been as a staff psychologist at St. Christopher-Ottilie, a child care agency in New York City.

Regarding specialized training in child sexual abuse, Dr. Andrews testified that she attended two separate day-long seminars (one in "the spring of 1992”; the other in December 1994). Other than these seminars, Dr. Andrews acknowledged that she never formally studied child sexual abuse in college, graduate school or otherwise. In lieu of additional formal training, Dr. Andrews attends weekly supervisory sessions concerning sexual abuse with a supervisor whose training and experience she could not adequately describe and also attends a monthly discussion group on the same subject. Notwith[443]*443standing this limited training in a uniquely specialized area of practice, Dr. Andrews stated that she had conducted approximately 60 sexual abuse evaluations in her present position and has been qualified as an expert witness twice in Family Court.

When asked to describe the procedures she utilized in this case, Dr. Andrews testified that, as always, she used a "holistic approach” in which she spoke to and obtained background information from the referring caseworker, including information on "the status of the [respondent natural] parent.” Dr. Andrews then interviewed the children on two separate occasions; each interview lasted between 30 and 60 minutes. During these interviews, Dr. Andrews inquired about family relationships, attempted to assess the children’s mental status, and asked the children to identify human body parts using a photograph of a clothed person she cut out of a Sears, Roebuck and Co. catalog.

Dr. Andrews further explained that she uses anatomically correct dolls and pictures, but only after a child already has "disclos[ed]” sexual abuse during the interview and/or is having "a difficult time expressing [himself or herself].” In her testimony, Dr. Andrews did not describe how the anatomically correct dolls and pictures are used after being introduced.

In addition, Dr. Andrews utilized two separate indexes or outlines (copyrighted by other clinical psychologists) as part of her validation process. First, she completed a Sexual Abuse Schedule Inventory based on information provided by the caseworker; that inventory lists behavior by children that may possibly indicate sexual abuse. Second, she used a Child Post-Traumatic Stress Reaction Index to determine the existence of child post-traumatic stress disorder. This index consists of a series of questions that she posed to the children involving recent upsetting or emotional events. Dr. Andrews stated that she does not "score” this index in the manner its creator intended; rather, she uses it as a "general outline.”

Because of "time constraints”, Dr. Andrews did not interview the respondent father either alone or with the children. Dr. Andrews explained that she rarely interviews the alleged perpetrators of sexual abuse. In her view, this does not affect the validity of her assessment.

Finally, Dr. Andrews followed her customary practice and did not audio record her interviews with the children. She considers such audio recording to be overly "distracting”. [444]*444Instead, she takes notes during the interviews which she considers to be an adequate record of what transpired.

Dr. Andrews repeatedly stated that she could not identify the procedures generally accepted in the field as reliable for validating the existence of sexual abuse syndrome in children. As a result, even though she described the procedures she had used, Dr. Andrews was entirely unable to explain how they comport with the generally accepted methodology or to describe her rationale for using them. Rather, Dr. Andrews opined that sexual abuse syndrome is insufficiently "documented” and stated that her purpose as a validator is only to determine "whether or not a child’s [out-of-court allegations of sexual abuse] are credible” — not to address the existence of the syndrome itself.

Regarding the protocol she used, Dr Andrews: (i) noted that "some” validators interview the alleged perpetrator but offered no explanation for not doing so in this case other than her statement that such an interview was precluded by "time constraints”; (ii) did not know of the accepted procedures for when to use anatomically correct dolls or pictures; (iii) was unaware of whether the two indexes she used are part of the standard protocol and did not know of the research, if any, supporting their use; and (iv) did not address the audio recording of interviews with the children as a part of the accepted protocol.

II

Before the testimony of an expert witness can be received in evidence, the party seeking to offer that evidence has the burden of demonstrating the qualifications that make the witness an expert. (Meiselman v Crown Hgts. Hosp., 285 NY 389 [1941].) Because there are no absolute rules automatically defining whether a witness is an expert or not, various combinations of education, training, observation or experience may suffice. (Supra, at 398.) However, the witness necessarily must be qualified in the specific subject at issue. (See, Fisch, New York Evidence §§ 418, 428 [2d ed 1977].) The Trial Judge determines in the exercise of discretion whether expertise has been sufficiently demonstrated to warrant admission of the testimony. (Meiselman v Crown Hgts. Hosp., supra, at 398-399.)

Here, although Dr. Andrews holds a doctorate in clinical psychology and is licensed to practice that profession in New York State, her qualifications as a sexual abuse validator fall [445]*445far short of what is required. (See generally, Gallet, Judicial Management of Child Sexual Abuse Cases, 23 Fam LQ 477 [1989].) Participation in two day-long seminars is, by itself, insufficient. That Dr. Andrews previously was qualified as an expert in Family Court, that she has received some additional supervision and that she has had some relevant experience during a relatively brief time span do not, without more, appreciably enhance her expertise. Notably, Dr.

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Bluebook (online)
165 Misc. 2d 441, 627 N.Y.S.2d 869, 1995 N.Y. Misc. LEXIS 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rm-children-nycfamct-1995.