Opinion
11-21-2017
In re WENDY P., and Another, Children Under Eighteen Years of Age, etc., Edwin S., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent. Professors of Psychology and Psychiatry, Amicus Curiae.
Davis Polk & Wardwell LLP, New York (Matthew R. Brock of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Carolyn Walther of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Riti P. Singh of counsel), attorney for the children. Christine Gottlieb, New York, and Proskauer Rose LLP, New York (Russell L. Hirschhorn of counsel), for amicus curiae.
Davis Polk & Wardwell LLP, New York (Matthew R. Brock of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Carolyn Walther of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Riti P. Singh of counsel), attorney for the children.
Christine Gottlieb, New York, and Proskauer Rose LLP, New York (Russell L. Hirschhorn of counsel), for amicus curiae.
FRIEDMAN, J.P., GISCHE, KAPNICK, KAHN, MOULTON, JJ.
Order, Family Court, Bronx County (Carol R. Sherman, J.), entered on or about May 19, 2016, which, to the extent appealable and insofar as appealed from as limited by the briefs, found that respondent Edwin S. had sexually abused his stepdaughter Wendy P., unanimously affirmed, without costs.
Respondent's attempt to seek review of the Family Court's earlier ruling under Frye v. United States, 293 F. 1013 (D.C. Cir.1923), is not reviewable on this appeal. Family Court denied respondent's Frye application in January of 2015 ( 47 Misc.3d 1202[A], 2015 N.Y. Slip Op. 50365 [U], 2015 WL 1380220 [Family Ct., Bronx County 2015] ). There, Family Court found that Dr. Treacy's validation testimony did not present a novel scientific issue requiring a Frye hearing, and that any purported deviation from the appropriate professional practices was a matter of evidentiary weight rather than of admissibility (id.). Respondent did not appeal from this order, and we are thus without jurisdiction to review it on this appeal from a nonfinal fact-finding order ( Family Court Act § 1112[a] ; CPLR 5501[a][1] ).
Respondent's argument that Dr. Treacy's testimony lacked the proper foundation also fails. Dr. Treacy provided detailed information about the guidelines she used to interview the child as well as her analysis of the interview utilizing Sgroi's Sexual Abuse Dynamics framework ( Matter of Nicole V., 71 N.Y.2d 112, 120–121, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ). Contrary to respondent's argument, a proper foundation does not require general acceptance in the scientific community, but may be properly laid by the expert based on her "personal knowledge acquired through professional experience" ( Mitrovic v. Silverman, 104 A.D.3d 430, 431, 961 N.Y.S.2d 75 [1st Dept.2013] ). This was clearly established here. Any alleged deviations from the established protocols went to the weight of Dr. Treacy's testimony, and did not form a basis for excluding the evidence entirely (see e.g. Matter of Nikita W. [Michael W.], 77 A.D.3d 1209, 1211, 910 N.Y.S.2d 202 [3d Dept.2010] ). Regardless, the record supports that Dr. Treacy did adhere closely to the aspirational protocols in question, in that she refrained from using leading or suggestive questions, considered alternative hypotheses and endeavored to promote an objective, neutral stance in conducting the evaluations.
To the extent the appeal raises any issue about evidentiary weight, the court did not abuse the discretion in relying on Dr. Treacy's testimony as providing sufficient validation and corroboration for the child's out of court statements. Given the admissibility and reliability of Dr. Treacy's testimony, Family Court's finding of sexual abuse was supported by a preponderance of the evidence ( Family Ct. Act § 1046[b][i] ). In addition to Dr. Treacy's validation testimony, the child's spontaneous, repeated, unrecanted descriptions of the abuse and the lack of any motive for her to fabricate the allegations against respondent support this finding. There was, in any event, additional corroborating evidence ( Family Ct. Act § 1046[a][vi] ), including the observations made of the child at the hospital. Moreover, respondent did not testify (see e.g. Matter of Jacklyn P., 86 N.Y.2d 875, 635 N.Y.S.2d 169, 658 N.E.2d 1042 [1995] ; Matter of Tashia QQ., 28 A.D.3d 816, 817, 812 N.Y.S.2d 182 [3d Dept.2006] ) or present evidence tending to show that he had not committed the abuse, and he admitted to an agency caseworker to having pornography on his electronic device. Respondent's case rested on the testimony of his expert, but she did interview the child and could not provide an opinion as to whether or not the child had been abused.