In these two child protective proceedings parents have been charged with sexually abusing their children. The proof of abuse rests principally on out-of-court statements of each child, evidence which is not legally sufficient to make a fact finding of child abuse unless corroborated in accordance with the requirements of section 1046 (a) (vi) of the Family Court Act.
In Matter of Nicole V., Bronx County Family Court made a fact finding that Nicole V.'s father, respondent Lawrence V., had sexually abused his daughter, then 3½ years old, and prohibited him from visiting her without supervision for 18 months. On his appeal, respondent challenges the sufficiency of the evidence to support the finding of abuse, claiming the court erroneously received testimony from Nicole's therapist to "validate" and corroborate Nicole's out-of-court statements. In the second proceeding, Matter of Francis W. Jr., Samuel W. and David C., Onondaga County Family Court made a fact finding that a mother, respondent Mary Alice C., had sexually
In recent years preventing the sexual abuse of children in family settings has become a major social and judicial concern (see generally, Besharov, Introductory Practice Commentary, McKinney's Cons Laws of NY, Book 29A, Family Ct Act art 10, at 214-216). Such abuse is difficult to detect because the acts are predominantly nonviolent and usually occur in secret rendering the child the only witness. Moreover, once abuse is uncovered it is difficult to fix blame, not only because of the lack of evidence but also because of the reluctance or inability of victims to testify.
In an effort to alleviate these problems, the Legislature, in 1969, enacted the Child Protective Procedures Act (Family Ct Act art 10). Its purpose is to protect children from injury or mistreatment while ensuring that the State's intervention on behalf of the child, against the wishes of a parent, comports with the parent's due process rights (Family Ct Act § 1011). Child protective proceedings do not, of themselves, permanently sever parental rights or result in criminal sanctions. They are civil in nature and a finding of abuse or neglect need only be supported by a preponderance of the evidence (Family Ct Act § 1046; Matter of Tammie Z., 66 N.Y.2d 1, 3). Upon making such a finding Family Court may interfere with a parent's right to continue care and custody of a child for an initial 18-month period, subject to renewal, by putting into effect a wide variety of remedies which include various levels of supervision or removal of the child from the parent's home (see, Family Ct Act §§ 1052, 1055 [b] [i]; Matter of Tammie Z., 66 N.Y.2d 1, 4, supra).
Because the accused parent is not subject to criminal sanctions in a child protective proceeding, the Legislature has provided that the usual rules of criminal evidence do not apply. Unsworn out-of-court statements of the victim may be
Notwithstanding these provisions, and even though the Family Court Act stated that corroboration as defined in the Penal Law was not required (see, Family Ct Act § 1012 [e] [iii]), many courts construed former section 1046 as requiring the same type of corroboration mandated by old provisions of the Penal Law requiring independent proof of the occurrence and identity of the offender in sex offenses when lack of consent was due to the victim's age (see, Penal Law former § 130.15, repealed L 1974, ch 14, § 1). That standard made it extremely difficult to prove sexual abuse charges and thus, section 1046 (a) (vi) was amended in 1985, not to change the standard of proof or the requirement of corroboration, but to make clear that the corroboration requirements of the criminal law are not applicable to article 10 civil proceedings (see, Sponsor Goodhue's Mem in support of legislation, L 1985, ch 724, 1985 NY Legis Ann, at 259; see also, Family Ct Act § 1012 [e] [iii]).
As amended, section 1046 (a) (vi) states a broad flexible rule providing that out-of-court statements may be corroborated by "[a]ny other evidence tending to support" their reliability (L 1985, ch 724). The amendment also provides that corroboration may include, but is not limited to, the types of evidence defined in other paragraphs of section 1046 (a). Thus, corroboration may come in the form of proof that the parent abused one of his other children (subd [a] [i]); proof that the injuries were of such nature that they would not ordinarily be sustained but for the acts or omissions of the parent (subd [a] [ii]); proof that the parent abuses drugs or alcohol to the extent that it would produce in him a state of stupor, unconsciousness, intoxication, hallucination, disorientation, incompetence or irrationality (subd [a] [iii]); hospital or agency reports suggesting the parent committed the act or omission (subd [a] [iv], [v]); and evidence regarding the emotional health of the parent (subd [a] [viii]). The statute provides that the evidence listed in these subdivisions may be sufficient, standing alone, to support a fact finding of abuse or neglect, but in those cases
Applying these concepts to the evidence presented in the two proceedings before us, we conclude the statutory requirements of corroboration are satisfied in both and the orders should, therefore, be affirmed.
In Matter of Nicole V., petitioner presented three witnesses at the fact-finding hearing: the child's mother, Linda V.; the child's caseworker from Special Services for Children, Ms. Champ; and the child's therapist, Ms. Lemp. Each witness testified to out-of-court hearsay statements made by Nicole describing incidents of sexual abuse by respondent in which he played "secret games" with her, involving hand to vagina contact, hand to chest contact, hand to anus contact, penis to vagina contact, and incidents in which he put "white paste" from his genital area in Nicole's mouth and "all over her".
There was also other evidence. Ms. Lemp testified that Nicole's behavior was symptomatic of a sexually abused child. Nicole's mother testified that Nicole developed vaginal rashes after weekend visits with respondent; that Nicole's behavior changed after weekend visits with respondent; and that, on one occasion after Nicole returned from a visit with respondent, the mother noticed blood on the washcloth after washing
Respondent testified on his own behalf and denied the allegations of abuse. He contends on appeal that Nicole's out-of-court statements describing incidents of sexual abuse were not sufficiently corroborated.
Under familiar rules, expert opinions are admissible on subjects involving professional or scientific knowledge or skill not within the range of ordinary training or intelligence (People v Cronin, 60 N.Y.2d 430, 432-433; De Long v County of Erie, 60 N.Y.2d 296, 307; Dougherty v Milliken, 163 N.Y. 527, 533). The psychological and behavioral characteristics and reactions typically shared by victims of abuse in a familial setting are not generally known by the average person and the courts have become increasingly more receptive to admitting expert testimony on the subject (see, e.g., People v Keindl, 68 N.Y.2d 410, 422, rearg denied 69 N.Y.2d 823 [psychological reactions of children sexually abused by a stepparent]; People v Henson, 33 N.Y.2d 63, 73-74 [battered child syndrome]; see also, People v Ciervo, 123 A.D.2d 393 [battered wife syndrome]; People v Reid, 123 Misc.2d 1084, 1085-1088 [rape trauma syndrome]; see generally, McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Ore L Rev 19 ). In People v Henson (supra), we upheld the use of expert testimony on "battered child syndrome" noting that extensive research had been undertaken in the area of physically abused children revealing that they shared common behavioral characteristics; "battered child syndrome" had become an accepted medical diagnosis (id., at 73-74). Evidence that a child demonstrated such characteristics, coupled with the fact that the child's injuries occurred while in the custody of the parents, was held sufficient to permit the inference that the parents were responsible for the injuries (supra, at 74).
The sexually abused child syndrome is similar to the battered child syndrome. It is a recognized diagnosis based
The validation evidence came from Nicole's therapist, Ms. Lemp. She testified Nicole's behavior led her to conclude Nicole had been sexually abused. Her opinion was formed during at least 10 therapy sessions spanning four months and was based on the nature of Nicole's statements, their consistency over a period of time and her observation of Nicole's behavioral patterns. Ms. Lemp explained that among the symptoms manifested by children who are sexually abused in an intrafamilial setting are: age-inappropriate knowledge of sexual behavior, manifested verbally, in play activities or through drawings; enuresis in a toilet trained child; regressive behavior and withdrawal; and severe temper tantrums or depression inappropriate for children of like age. She identified classic symptoms of child abuse in Nicole: her uncommunicative, withdrawn demeanor, a typical avoidance mechanism adopted by persons suffering from posttraumatic stress, and her knowledge of sexual activity far beyond the norm for 3½-year-old children. There was no other basis in reality, for example, for Nicole's statements of "white glue" or "paste" coming from her father's genital area or the placing of his
Ms. Lemp was also able to observe Nicole's display of extreme anger — far exceeding the temper tantrums normally seen in young children — and her fearful behavior exhibited through nightmares and sleep disturbances; she testified that such reactions were symptomatic of an abused child. She found it significant that Nicole repeated her claims to various people over a period of time in a consistent manner because, she stated, children "do not have the skill at lying that adults do" and thus "cannot be consistent [about lying] for a period of several months to several different people".
Respondent contends that validation evidence, even if admissible to corroborate a child's hearsay statement, must be received from independent experts in psychiatry or psychology and Ms. Lemp's testimony did not qualify for the purpose because she was a social worker hired by Nicole's mother to treat her.
Ms. Lemp's qualifications to testify were conceded by respondent, however, after it was established that she had a Bachelor's degree in deviant behavior and social control and a Master's degree in social work, that she was the director of two Bronx County offices of the Victim Services Agency and had counseled sexually abused children and their families for 2½ years and that she was the chairperson of the education committee of the New York City Task Force Against Sexual Abuse.
Nor was her testimony unavailable for corroboration because she was treating Nicole. An expert's relationship to the party offering her does not disqualify the witness from giving opinion evidence and any bias Ms. Lemp may have had could be addressed on cross-examination. Moreover, Nicole's statement was also corroborated by evidence that she suffered from vaginal rashes, depression and sleep disturbances, that blood was found in her vaginal area and by a certified medical report stating that she had no hymen (see, Family Ct Act § 1046 [a] [vi]; CPLR 4518). There may be circumstances when the court, in its discretion, finds it desirable to use the assistance of an independent expert but in this case not only was the testimony of Ms. Lemp sufficient to corroborate Nicole's out-of-court statements and establish a prima facie case, there was also additional corroboration which supported Family Court's fact finding. Accordingly, the order of the Appellate Division should be affirmed.
In Matter of Francis Charles W., Jr., Samuel W. and David C., petitioner presented three witnesses at the fact-finding hearing: Deputy Paul Carey from the Abused Persons Unit of the Onondaga County Sheriff's Department; Richard J. Stone, Francis' foster father; and Merlene White, a former neighbor of respondent. Deputy Carey testified to three separate interviews he conducted with the children during which each child described incidents of sexual abuse by respondent. Deputy Carey prepared a written affidavit, accompanied by two anatomically correct diagrams (one of a young male and one of a mature female), which Francis, then 11, read and signed under oath. Additionally, Deputy Carey prepared and signed under oath two contemporaneous affidavits which summarized the interviews he conducted with Samuel and David (see, Family Ct Act § 1046 [a] [iv]). These three affidavits were admitted into evidence. Further, Francis' foster father testified that in a conversation with his stepson, Francis described generally sexual acts which previously occurred between Francis and respondent and each of the other brothers and respondent. Finally, Merlene White described an incident, which occurred six months earlier, where Samuel and David put their hands inside respondent's shirt and fondled her breasts for 5-10 minutes, and other incidents which occurred five years and three years earlier where respondent punished Francis with a two-inch leather belt. Respondent did not testify on her own behalf. Her sister testified but her testimony was directed solely to impeaching Merlene White's testimony.
Thus, the petitioner's proof consisted principally of two levels of admissible hearsay statements describing incidents of sexual abuse. First, there were the out-of-court statements Francis made to Deputy Carey and his foster father and those contained in Francis' affidavit. Those hearsay statements could not be used to cross-corroborate each other because section 1046 (a) (vi) provides that "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect" (Family Ct Act § 1046 [a] [vi] [emphasis added]). The natural meaning of that language is that repetition of an accusation by a child does not corroborate the child's prior account of it.
In addition to Francis' hearsay statements, however, there
The statements of each of the three brothers in this proceeding tend to support the statements of the others and, viewed together, give sufficient indicia of reliability to each victim's out-of-court statements. Specifically, both Francis and David described an incident in which respondent had David put a "stick" into respondent's vagina while Francis looked on. Additionally, both Samuel and Francis described separate incidents where respondent came into each child's bedroom in the middle of the night and had sexual relations, hand to penis contact and mouth to penis contact, with each child after which she threatened each child not to tell anyone about the incidents. Because each child had consistently and independently described these particularly detailed sexual acts, the reliability of the victim's out-of-court statements could be weighed by comparing them. Thus, the courts below were justified in finding each victim's hearsay statements were sufficiently corroborated to create a prima facie case of sexual abuse under section 1046 (a) (vi) by the statements of the other victims and because a prima facie case was established, the affirmed factual findings of abuse are beyond this court's review.
Accordingly, the Appellate Division orders in Matter of Nicole V.
In each case: Order affirmed, without costs.