Opinion
NA-XXXXXXX/XX
01-30-2015
In the Matter of Wendy P. and VALERIA S. Children under the Age of Eighteen Years Old Alleged to be Neglected by EDWIN S., Respondent.
Zackary Carter, Corporation Counsel, Alan W. Sputz, Esq., Special Assistant Corporation Counsel, Administration for Children's Services, Family Court Legal Services, (by Tiffany Wichman, Esq.), Bronx Family Court, 900 Sheridan Avenue, 6th Floor, Bronx, New York 10451. Telephone: 718-590-5438. The Legal Aid Society, Juvenile Rights Practice, Bronx Court Office, 900 Sheridan Avenue, 6C-12, Bronx, New York 10451, Attorney for the Children, (by Michelle Domena, Esq.). Telephone: 718-579-7900. The Bronx Defenders - Family Defense Practice, 360 East 161st Street, Bronx, New York 10451, counsel for Respondent Father/PLR, (by Patrick T. Clark, Esq. and Milinda Kakani, Esq.). Telephone: 718-838-7878.
Zackary Carter, Corporation Counsel, Alan W. Sputz, Esq., Special Assistant Corporation Counsel, Administration for Children's Services, Family Court Legal Services, (by Tiffany Wichman, Esq.), Bronx Family Court, 900 Sheridan Avenue, 6th Floor, Bronx, New York 10451.
Telephone: 718-590-5438.
The Legal Aid Society, Juvenile Rights Practice, Bronx Court Office, 900 Sheridan Avenue, 6C-12, Bronx, New York 10451, Attorney for the Children, (by Michelle Domena, Esq.).
Telephone: 718-579-7900.
The Bronx Defenders - Family Defense Practice, 360 East 161st Street, Bronx, New York 10451, counsel for Respondent Father/PLR, (by Patrick T. Clark, Esq. and Milinda Kakani, Esq.). Telephone: 718-838-7878.
Carol R. Sherman, J.
On August 25, 2014, the Respondent Father/Person Legally Responsible (PLR), Edwin S., in this child abuse proceeding pursuant to Article 10 of the Family Court Act ("FCA") filed October 21, 2013, filed a motion requesting that the court preclude from evidence at the fact-finding hearing the testimony of Dr. Eileen Treacy, the forensic evaluator retained by the Administration for Children's Services ("ACS"), or in the alternative, to hold a Frye hearing as to the admissibility of Dr. Eileen Treacy's testimony and written report.
Factual Background
On October 21, 2013, the Administration for Children's Services (hereinafter "ACS") filed petitions pursuant to Article 10 of the Family Court Act alleging that the Respondent Father/PLR, Edwin S., who is the biological father of Valeria S. (age 10) and person legally responsible for the child Wendy P. (age twelve), committed or allowed to be committed a sexual offense against the subject child, Wendy P., as defined in Articles 130.52, 130.55, 130.60, 130.65, and 130.80 of the Penal Law. The petitions stated the following:
" WENDY P. and VALERIA S. are children under the age of eighteen whose parent EDWIN S. father of the subject child Valeria and a person legally responsible for the care of the subject child Wendy, committed or allowed to be committed a sex offense against such children as defined in Article 130 of the Penal Law or allowed the children to engage in conduct described in Article 263 of the Penal law in that:
1. According to the respondent father EDWIN S., the subject child Valeria is his biological daughter and he is the step-father of the subject child Wendy. Upon information and belief, the Respondent is a person legally responsible for the care of WENDY P. in that, according to the respondent, he has resided with the non-respondent mother for the past six years and he pays the rent, provides food, and pays tuition for both children to attend private school.
2. The Respondent EDWIN S. committed sexual offenses against the subject child WENDY P. as defined in Article 130.42, 130.55, 130.60, 130.65, 130.80 of the Penal law:
a.On or about October 17, 2013, the subject child Wendy stated to the undersigned that her step-father, Mr. S., has been touching her private parts for the past two years, since the touching started when they lived two years ago in the basement apartment of their current address. She further stated that the respondent would touch her by moving his hands back and forth on her vagina and breasts under her clothing. The subject child further stated that the last time the respondent touched her was October 13, 2013, the day before her mother returned home from Mexico after a two week trip.
b. On or about October 17, 2013, the subject child Maria [sic] stated to the undersigned CPS that on or about October 13, 2013, she was sleeping in her own bedroom and could not sleep as her mother was away. She stated that she went into her parent[']s bedroom and lay down in the bed. The subject child then stated that the respondent began touching her on her vagina under her pajama pants. The subject child told the respondent "to stop" but he did not.
c. On or about October 17, 2013, the subject child Maria [sic] stated to the undersigned CPS that in the past the respondent has asked her to touch his penis and has held her hands and placed them on his penis.
d. On or about October 17, 2013, the subject child Maria [sic] stated to the undersigned CPS that in the past, the respondent has shown her a video on his Samsung phone (quote) of a husband and wife naked and doing stuff (end of quote). The subject child stated that she covered her eyes as she did not want to see the sex acts depicted in the video.
e. On or about October 17, 2013, the subject child Wendy stated to the undersigned that in the past the respondent told her not to tell anyone that he touches her as she needs to keep it a secret. The subject child also stated that she does not feel safe when she is alone with the respondent.
f. Based on the sexual abuse of WENDY P., the subject child VALERIA S. is an abused child."
The court commenced a fact-finding hearing on June 24, 2014 with the testimony of ACS caseworker, Yocasta Del Rosario, which continued on September 23, 2014 and September 30, 2014.On August 25, 2014, the Attorney for the Respondent Father/PLR filed the within motion requesting that the court preclude the expert validation testimony of Eileen Treacy, Ph.D., or in the alternative, hold a Frye hearing as to its admissibility. The Respondent Father/PLR claimed that validation testimony does not meet the "general acceptance" standard for the admission of scientific evidence because it was based upon the theory of "sexually abused child syndrome" which is no longer an accepted diagnosis in the scientific community and/or that Dr. Treacy's opinion is not reliable since she failed to follow accepted protocols for interviewing and evaluating children and her assessments were faulty. Attached to the Respondent Father/PLR's motion is a memorandum of law, the American Professional Society on the Abuse of Children Practice ("APSAC") Guidelines, (Respondent's Exhibit "A"), New York State Children's Justice Task Force Forensic Interviewing Best Practices ("NYSFIBP") Guidelines (Respondent's Exhibit "B"), Report by John C. Yuille, Ph.D. dated August 11, 2014, APSAC Psycho-social Evaluation of Suspected Sexual Abuse in Children (Respondent's Exhibit "C"), and "Sexual Abuse Assessment - Summary Report" by Eileen C. Treacy, Ph.D. dated May 15, 2014 (Respondent's Exhibit "D").
On October 1, 2014, ACS filed an affirmation in opposition to the motion, claiming that the methodology used by proposed expert Dr. Eileen Treacy is generally accepted within the scientific community, Dr. Treacy's expert opinion did not present a novel question, and therefore Dr. Treacy's testimony is not subject to a Frye hearing. Additionally, ACS claimed that any challenges to the expert's purported departures from protocols is an issue for the court to determine at trial and goes toward the weight the court affords the evidence, not its admissibility. Attached to the affirmation in opposition is Dr. Treacy's curriculum vitae (Petitioner's Exhibit "A"), Dr. Treacy's Affidavit in response to the issues raised by Dr. Yuille (Petitioner's Exhibit "B"), Dr. Treacy's report dated May 15, 2014 (Petitioner's Exhibit "C"), an excerpt of Dr. Yuille's testimony from the transcript of a criminal trial in Suffolk County, whose caption has been redacted (Petitioner's Exhibit "D").
On October 1, 2014, the Attorney for the Children filed an affirmation in opposition to the motion, stating that there was no basis for a Frye hearing or to exclude the report and testimony of Dr. Treacy, and the issues raised by the Respondent Father/PLR should be determined by the court at the fact-finding hearing.
On October 31, 2014, the Respondent Father/PLR filed a reply in support of the motion.
LEGAL ANALYSIS
Pursuant to the special discovery rules in child protective matters, a child who is the subject of an Article 10 child protective proceeding may be made available for an examination by a physician, psychologist or social worker selected by the party or the child's attorney to assist in the preparation of the trial (see FCA § 1038[c]; CPLR § 3101[d]). Additionally, a child may be interviewed by a physician, psychologist or social worker "for the purposes of offering expert testimony to a court regarding the sexual abuse of the child," as such term is defined by Family Court Act § 1012[e]. (FCA § 1038[c]; see Uniform Rules for Fam Ct [22 NYCRR] § 205.86). In the present matter, in accordance with FCA § 1038[c], ACS arranged for the subject child, Wendy P., to be evaluated by Eileen Treacy, Ph.D. for a sexual abuse assessment. Id. Accordingly, counsel received a copy of Dr. Treacy's "Sexual Abuse Assessment - Summary Report" (hereinafter "report") dated May 15, 2014 and DVD's of Dr. Treacy's interviews of Wendy. ACS informed the court and counsel that it intended to call Dr. Treacy as an expert witness to provide validation testimony to corroborate Wendy's out-of-court statements made to caseworker, Yocasta Del Rosario.
Only "competent, material and relevant evidence" may be admitted in an Article 10 child protective proceeding at the fact-finding hearing (FCA § 1046[b][iii]). However, Family Court Act § 1046 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. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration. The testimony of the child shall not be necessary to make a fact-finding of abuse or neglect." FCA § 1046[a][vi]).
Corroboration is not required because the statements of children are generally unreliable, but "because the out-of-court statements are hearsay and the statute requires some further evidence to establish their reliability." Matter of Nicole V, 71 NY2d 112, 118 [1987] reh denied sub nom. In Re Frances Charles W., 71 NY2d 890 [1988]).
The Court of Appeals noted that when the evidentiary rules in Family Court Act § 1046 were enacted in 1985, it was in response to the inherent problems in sexual abuse matters, in that "[s]uch 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." Id. at 117 [1988]. Moreover, physical evidence is rare, for "[m]ost crimes consist of petting, exhibitionism, fondling, and oral copulation, activities that do not involve forceful physical contact. The lack of physical corroboration can also be attributed to the fact that most children, for a variety of reasons, do not resist their attackers ..." Matter of Linda K., 132 AD2d 149, 155 [2d Dept. 1989]. The memorandum submitted in support of the 1985 amendment to FCA § 1046[a][vi] proposed by Senator Mary B. Goodhue stated that the intent of the Legislature was clear, for "[t]he purpose of this bill is to expressly provide that the child's testimony is not necessary as corroboration of out-of-court statements of the child admitted into evidence, but that any evidence shall be sufficient to corroborate the out-of-court statements as the basis of a family court fact finding of child abuse or neglect" Id. at 156.
In the present matter, Respondent Father/PLR seeks to preclude the expert validation testimony and report of Dr. Treacy or requests that this court conduct a Frye hearing to test the "general acceptance" of the validation opinion in the scientific community. In Frye v United States, 293 F. 1013 [D.C. Cir. 1923], the court established a standard for the admissibility of expert testimony: expert testimony based on scientific principles or procedures is admissible in evidence where the principle or procedure has "gained general acceptance" in its specified field. The court stated in relevant part:
"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." (Id. at 1014).
Accordingly, the Frye test asks "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally" (Parker v Mobil Oil Corp., 7 NY3d 434, 446 [2006], quoting People v Wesley, 83 NY2d 417, 422 [1994]). The Frye test of reliability "is not whether a particular procedure is unanimously endorsed by the scientific community, but whether it is generally accepted as reliable" (see People v Middleton, 54 NY2 42, 49 [1981]). The party offering the expert testimony has the burden of proving that an expert's opinion is based upon generally accepted scientific principles and procedures (see Zito v Zabarsky, 28 AD3d 42, 44 [2d Dept. 2006]).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 [1993], the United States Supreme Court held that in federal cases, the "general acceptance" test of Frye was superseded by the Federal Rules of Evidence (FRE), and thus general acceptance is not a necessary precondition to the admissibility of scientific evidence. The Supreme Court listed several factors for federal judges to consider in determining whether to admit expert scientific testimony under Federal Rules of Evidence rule 702: whether the theory or technique employed by the expert is generally accepted in the scientific community; whether it's been subjected to peer review and publication; whether it can be and has been tested; and whether the known or potential rate of error is acceptable. Id. at 593. The factors are illustrative rather than exhaustive, and each do not need to be applied equally or in every case. Id. Accordingly, Daubert replaced Frye for federal cases, and the standard is liberal. The expert testimony will be admissible if the evidence "will assist the trier of fact to understand or determine a fact in issue." Id. at 591.
In People v Wesley, 83 NY2d 417 [1994], the New York Court of Appeals applied "the general acceptance" Frye standard to novel scientific DNA evidence. The court inquired "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community." Id. at 422. In that matter, the trial court held a Frye hearing and determined that DNA profiling evidence is generally accepted as reliable by the relevant scientific community. The Court of Appeals agreed that there was sufficient evidence to support the trial court's determination of reliability as a matter of law, and the determination comported with generally accepted scientific authority. Id. at 424. The Court of Appeals noted that scientific evidence may be admitted without any hearing at all by the trial court (id. at 426, citing Matter of Lahey v Kelly, 71 NY2d 135 [1987] (finding general acceptance and reliability of EMIT drug testing based on legal writings and judicial opinions); People v Middleton, 54 NY2d 42 [1981] (finding general acceptance and reliability of bite mark identification evidence because it has been accepted by all the appellate courts which have addressed the issue)), and that the modern trend in evidence has been away from imposing a special test on scientific evidence and toward using the "traditional standards of relevance and the need for expertise." Id. The Court of Appeals noted that any challenges to the trial foundation or the weight of the evidence are not properly addressed in a pre-trial Frye proceeding. Id. at 427.
The New York State Court of Appeals, in Matter of Nicole V., addressed the issue of corroboration of statements by the victim children in sexual abuse cases in family court by an expert witness "validator" (71 NY2d 112 [1987] reh denied sub nom. In re Frances Charles W., 71 NY2d 890 [1988]). The Court of Appeals found that a therapist who employed the "Sgroi methodology" reliable, and permitted the therapist's testimony that the child was symptomatic of a sexually abused child (based on the nature of the child's statements, their consistency over a period of time, the therapist's observations of the child's behavior patterns and the child's age-inappropriate knowledge of sexual abuse), to corroborate the child's out-of-court statements. Id. The court explained that "preventing sexual abuse of children in family settings has become a major social and judicial concern." Id. at 117. Further, there are several evidentiary issues specific to sexual abuse cases because these matters are "... difficult to detect because the acts are predominantly nonviolent in nature and usually occur in secret rendering the child the only witness" and ".... the reluctance or inability of victims to testify." Id. Family Court Act Article 10 was enacted to alleviate these problems, for "[i]ts 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" (Id.; see FCA § 1011). The Court of Appeals noted that the legislature enacted the special evidentiary rules set forth in FCA § 1046 [a][vi] so that the corroboration requirements in criminal law are not applicable to Article 10 civil proceedings (Id. at 118; citing Sponsor Goodhue's Memo in support of legislation, (L 1985, ch 724, 1985 NY Legis Ann, at 259); see also FCA § 1012 [e][iii]), and out-of-court statements may be corroborated by a more flexible and broad standard. Id. Noting that expert opinions are admissible on subjects involving professional or scientific knowledge or skill not within the range of ordinary training or intelligence, the Court of Appeals found that psychological and behavioral characteristics of reactions typically shared by victims of abuse in a familial setting are not generally known by the average person. Id. at 120. Further, the Court of Appeals pointed out that courts have become increasingly more receptive to admitting expert testimony on this subject ( Id. citing People v. Keindl, 68 NY2d 410, 422 [1986], rearg denied 69 NY2d 823 (permitting expert testimony regarding psychological reactions of children sexually abused by a stepparent because it is not a subject matter within the ken of the typical juror)). The Court of Appeals cited to cases where expert testimony was admissible on the subjects of battered child syndrome, battered wife syndrome, and rape trauma syndrome, and determined that "sexually abused child syndrome" is similar to battered child syndrome, since "[i]t is a recognized diagnosis based upon comparisons between the characteristics of individuals and relationships in incestuous families, as described by mental health experts, and the characteristics of individuals and relationships of the family in question" ( Id. at 120-121, citing Sgroi, Handbook of Clinical Intervention in Child Sexual Abuse, at 37-39 [1982] (referring to "sexual abuse dynamics" and five stages of sexual abuse: secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction)). Further, the Court of Appeals noted that expert diagnoses on the subject have been accepted by some of the courts to validate out-of-court statements, particularly when an independent expert is employed for that purpose ( Id. at 121 citing Matter of Linda K., 132 AD2d 149 [2d Dept. 1987]; Matter of Ryan D., 125 AD2d 160 [4th Dept. 1987]; Matter of Fawn S., 123 AD2d 871 [2d Dept. 1986] ; Matter of Kimberly K., 123 AD2d 865 [2d Dept. 1986]; Matter of Michael G., 129 Misc 2d 186 [Fam. Ct., Westchester Co. 1985]) and has been accepted by the New York Court of Appeals and other jurisdictions, "even in criminal cases, either to bolster the credibility of infant victims (citation omitted) or to corroborate the victim's testimony (citation omitted)." Id. The Court of Appeals concluded that the expert testimony was properly used to corroborate the child's out-of-court testimony. Id.
Notably, there is no reported case in which a family court or appellate court has required or recognized the need for a Frye hearing in an Article 10 proceeding for the admissibility of expert validation testimony in sexual abuse matters. The Appellate Division held in Matter of Bethany F., 85 AD3d 1588 [4th Dept. 2011] that a Frye hearing was not required regarding the admissibility of expert validation testimony of a court-appointed mental health counselor in an Article 10 fact-finding hearing. The court noted that the expert had employed the "Sgroi method" to interview the child, and the New York Court of Appeals had already established the reliability of this methodology when it cited to Dr. Suzanne Sgroi's "Handbook of Clinical Intervention in Child Abuse" (see Matter of Nicole V., 71 NY2d 112, 121 [1987], reh denied sub nom. In re Frances Charles W., 71 NY2d 890 [1988]), and that other courts in New York State have admitted validation testimony of experts who have utilized this method (citing Matter of Thomas N., 229 AD2d 666 [3rd Dept. 1996] (finding expert testimony admissible that employed the Sgroi methods test for the existence of five standards); Nassau County Dept. of Social Servs. [Erika K.] v Steven K., 176 AD2d 326, 327-29 [2d Dept. 1991]). Moreover, the court noted that "[o]nce a scientific procedure has been proved reliable, a Frye inquiry need not be conducted each time such evidence is offered[, and courts] may take judicial notice of [its] reliability" (Id. at 1588 citing People v Hopkins, 46 AD3d 1449, 1550 [2007] lv denied 10 NY3d 812 [2008]; People v LeGrand, 8 NY3d 449, 458 [2007]). In Matter of Nikita W., 77 AD3d 1209, 1210 [3rd Dept. 2010], the "Yuille Step Wise Protocol" was found to be reliable and the court admitted the expert validator's testimony who employed this method and testified regarding the "typical dynamics seen in sexual abuse victims," (see Matter of Richard SS., 29 AD3d 1118, 1121 [3rd Dept. 2006]).
The appellate courts have noted that any challenges to the expert's purported departures from established protocols go to the expert's credibility and the "weight" afforded to the expert opinion, not its admissibility (see Matter of Nikita, 77 AD3d at 1211 [3rd Dept. 2010]). Challenges to the expert's assessments and conclusions and the scope of the expert's testimony go toward the weight the court affords the expert opinion (see Matter of Miranda HH., 80 AD3d 896 [3rd Dept. 2011] (noting that issues raised by conflicting expert opinions go to the credibility and weight the court affords the expert opinion); Matter of Katje YY., 233 AD2d 695 [3rd Dept. 1996] (noting that rigorous cross-examination of the expert together with testimony of the respondent's own expert created issues of credibility and weight); Matter of Thomas N., 229 AD2d 666, 668 [3rd Dept. 1996] (noting that deficiencies disclosed by cross-examination of the expert's opinion go toward the court's determinations of credibility and weight)).
The Respondent Father/PLR made the following arguments in his memorandum of law and reply in support of the motion:
First, the Respondent Father/PLR argued that Dr. Treacy deviated from established protocols, and therefore her testimony should be precluded (referring to a report by John Yuille, Ph.D. dated August 11, 2014, which stated that Dr. Treacy deviated from the APSAC protocols by not fully exploring alternative hypotheses when assessing the allegations, by at times asking leading or suggestive questions, and by not fully understanding memory issues). (Respondent's Exhibit "C"). The Respondent Father/PLR cited cases wherein the court admitted the expert's testimony and then made a determination regarding the weight to afford the testimony when the expert deviated from established protocols (see Matter of Kayla J., 74 AD3d 166 [3rd Dept. 2010] (court found therapist's testimony not credible where the therapist's role was therapeutic, expert had failed to apply any of the established interviewing protocols, expert acted under the assumption that abuse occurred, and the interview was "tainted" by the mother's influence); Matter of Jared XX, 276 AD2d 980 [3rd Dept. 2000] (finding expert's testimony not credible where expert had departed from Yuilee protocol and had not been advised of inconsistencies in child's statements or that mother had subjected child to leading and inappropriate questions); Matter of D.M. Y.S. G.R. Children, 29 Misc 3d 1229(A) [Fam. Ct., Bronx Co. 2010] (court found expert not credible where expert did not state which protocols he used or why he borrowed from parts of several protocols, he violated established standards by having the mother present and consulted with during the interview, he referred to outside reports without specifying which ones and did not follow up on the sources of those reports, he did not take into consideration the family history, the child's ongoing therapy, or the custody litigation, and he asked leading questions); Matter of R./M. Children, 165 Misc 2d 441 [Fam. Ct., Kings Co. 1995] (court rejected expert's testimony as "incompetent" where witness was not qualified as an expert, she was unfamiliar with the validation protocols accepted in the field as reliable, and she employed substantially deficient procedures)).
The court finds that in none of the above cases cited by the Respondent Father/PLR did the court hold a Frye hearing nor did it preclude the expert's testimony and report based upon the expert's alleged deviations from protocols. Additional case law on this issue demonstrates that expert testimony was admitted into evidence and then the court weighed the credibility and validity of the expert's testimony after taking into consideration any deviation by the expert from protocols (see also Matter of Keala XX, 217 AD2d 745 [3rd Dept. 1995] (court found expert's testimony lacked credibility where expert substantially deviated from protocols by permitting mother and step-father to remain and discuss and clarify certain issues during the discussion and expert failed to recall much of the interview); Matter of Kelly F., 206 AD2d 227 [3rd Dept. 1994] (court found expert not credible who had employed faulty protocols and focused on whether the child was telling the truth, and did not focus on whether child had any of the psychological or behavioral characteristics typically manifested by a child who has suffered sexual abuse); Matter of Julius G., 28 Misc 3d 1227A [Fam. Ct., Queens Co. 2010] (court found expert's testimony not convincing where she spent little time with the child and did not explore coaching, and at times challenged the child's answers, asked leading questions, and interrupted the child)). Accordingly, any concerns regarding Dr. Treacy's purported deviations from established protocol shall be elicited through cross-examination of Dr. Treacy and go to the weight the court should give to Dr. Treacy's testimony and report. Therefore, such alleged deviation is not a basis to preclude Dr. Treacy's testimony or report or to hold a Frye hearing. See Matter of Nikita N., 77 AD3d at 1211 [3rd Dept. 2010]; Matter of Miranda HH.,80 AD3d 896 [3rd Dept. 2011]; Matter of Thomas N., 229 AD2d 666, 668 [3rd Dept. 1996].
Second, the Respondent Father/PLR claimed that expert validation opinion in sexual abuse matters has never been the subject of an admissibility challenge under Frye since its inception, and therefore ACS must establish the general reliability of this scientific method. The Respondent Father/PLR claimed that in Matter of Nicole V., the New York Court of Appeals approved of the use of validation testimony on "sexually abused child syndrome" (hereinafter "SACS") without any challenge regarding the general acceptance of its underlying principles. See also Matter of E.M. and Others, 137 Misc 2d 197, 203 [Fam. Ct., New York Co. 1987]. Contrary to that statement, the trial court in Nicole V. specifically referred to and considered a "substantial body of literature" with respect to sexually abused children and concluded that expert opinion on "sexually abused child abuse syndrome" is admissible on the issue of whether a child is the victim of intra-familial sexual abuse, as confirmed by the presence of certain symptomology discovered through the validation process..." Id. at 202. Accordingly, the Court of Appeals in Nicole V., affirmed the family court and determined that expert testimony, (also known as "validation" testimony), is admissible in sexual abuse child protective matters to show whether the child exhibits any psychological and behavior characteristics typically displayed by a child who has suffered sexual abuse or to show that the child's behavior is consistent with child sexual abuse syndrome (see Matter of Nicole V., 71 NY2d 112, 121 [1987], reh denied sub. nom. In re Francis Charles W., 71 NY2d 890 [1988]; Matter of Vincent "I", 205 AD2d 878 [3rd Dept. 1994]; In re Estina W., 181 AD2d 554 [1st Dept. 1992]; Matter of G. And E. Children, 183 AD2d 490 [1st Dept. 1991]).
Expert testimony has been found relevant to show that the child's demeanor and statements about the sexual abuse were consistent over time (Matter of Pearl M., 44 AD3d 348 [1st Dept. 2007]), the child's behavioral symptoms observed in therapy and the child's age-inappropriate knowledge of sexual behavior supported the claim of sexual abuse (Matter of Laura W., 160 AD2d 585 [1st Dept. 1990]), and that the child's behavioral patterns after the incident support the claimed sexual abuse (Matter of Davina C., 186 AD2d 422 [1st Dept. 1992]. Additionally, expert witness testimony has been used in family court sexual abuse matters to describe the child's ability to recall, report, or tell the truth, but not to provide an opinion regarding whether the expert believes the child (Matter of Sanchez, 141 Misc 2d 1066, 1079 [Fam. Ct., Bronx Co. 1988]; Matter of Kelly F., 206 AD2d 227, 228 [3rd Dept. 1994]), to describe the child's ability to differentiate between reality and fantasy and to describe whether the child has the ability to perceive, remember, and report on the issue based upon the child's developmental state (Matter of Sanchez, 141 Misc 2d 1066, 1079 [Fam. Ct., Bronx Co. 1988]). There is more than sufficient case law to support the admission of expert validation testimony without a Frye hearing and whether or not a court had held a Frye hearing in the past is not a basis for the court to hold one in this case.
Third, the Respondent Father/PLR claimed expert testimony regarding whether a child exhibits sexual abuse child syndrome ("SACS"), child sexual abuse syndrome ("CSAS"), or child sexual abuse accommodation syndrome ("CSAAS"), and evidence regarding whether a child exhibits behavior that is consistent with children who have been abused, is no longer recognized in the field of child psychology since there is no longer a typical, common, or single expected reaction to sexual abuse, these syndromes were not intended as a diagnostic device and do not detect sexual abuse, and are not listed in the current Diagnostic and Statistical Manual of Mental Disorders, 5th Edition ("DSM"), citing John E. B. Myers, Myers of Evidence in Child, Domestic, and Elder Abuse Cases, Vol. 1, § 6.12, p. 376 (2005). In response, ACS pointed out in its affirmation in opposition to the motion that Dr. Treacy did not make a diagnosis of sexual abuse child syndrome, child sexual abuse syndrome, or child sexual abuse accommodation syndrome, and made no mention of any syndrome. Dr. Treacy found that Wendy displayed five Sexual Abuse Dynamics: Engagement, Sexual Interaction, Secrecy, Disclosure, and Suppression. The court notes that these five dynamics are similar to and some are identical to the five phases of sexual abuse employed by Dr. Sgroi's methodology which was considered reliable in Matter of Nicole V.. Further, Dr. Treacy provided numerous arguments in her affidavit to support her methodology. Accordingly, the court will receive testimony from Dr. Treacy regarding her use of the American Professional Society on the Abuse of Children ("ASPAC") practice guidelines and the NYSFIBP guideline protocols and will determine whether "sexual abuse dynamics" is part of an accepted and valid protocol. Accordingly, the court will consider any challenges to the protocols used by Dr. Treacy as going to the weight to afford Dr. Treacy's opinion, not its admissibility. See Matter of Nikita N.,77 AD3d 1209, 1210 [3rd Dept. 2010], Thomas N., 229 AD2d 666 [3rd Dept. 1996].
CSAAS was developed by Dr. Roland Summit in 1983, and describes the most frequently observed behaviors typically found occurring in sexually abuse children.
The Respondent Father/PLR's reliance on State v Foret, 628 So2d 1116, 1125 [La. 1993] for the principle that "sexual abuse dynamics" is not generally accepted is misplaced. In that matter, a Louisiana criminal appeals court permitted the admission of expert testimony on "sexual abuse dynamics" in violation of discovery rules. The Louisiana Supreme Court reversed and noted that the discovery violation prevented the defendant from adequately preparing to rebut the expert witnesses' testimony and deprived the court of its "careful study" of the matter in order to limit the expert testimony to areas where the probative value outweighs its prejudicial value. That matter concerned a criminal prosecution from another jurisdiction, not a New York Family Court Article 10 child sexual abuse proceeding, and as such, the rules of evidence, burden of proof, and corroboration requirements differed. For these reasons, that case is not relevant to this Article 10 child protective proceeding.
In the alternative, the Respondent Father/PLR argued that to the extent that Dr. Treacy's testimony did not rely upon CSAAS, the court must assess the validity of her methodology by conducting a Frye hearing, because "sexual abuse dynamics" is not relevant in the forensic context and is not based upon any established research foundation (citing Response by Dr. John Yuille, Exhibit "A" and State v Michaels, 625 AD2d 489, 497 [N.J. Super. Ct. App. Div. 1993] (noting that expert's testimony is admissible for the purpose of rehabilitation to explain traits often found in children who have been abused, but not to provide an opinion about whether a particular child was abused)). As stated above, challenges regarding the extent that Dr. Treacy followed or deviated from protocol go toward the weight the court will afford the evidence, not its admissibility. The Respondent Father/PLR's reliance on State v Michaels is misplaced, as that matter concerned a criminal matter from another jurisdiction, not a New York State Article 10 family court child sexual abuse proceeding, and as such, the rules of evidence, burden of proof and corroboration requirements differed. For these reasons, that case is not relevant to this Article 10 family court child protective proceeding.
Fourth, the Respondent Father/PLR suggested that because scientific understandings can change over time since they are not static, and a scientific consensus may or may not endure, it is therefore appropriate to conduct a Frye hearing in this matter (citing Cornell v 360 W. 51st Street Realty, 22 NY3d 762 [2014]). The court finds that the Respondent Father/PLR's reliance on Cornell v 360 W. 51st Street Realty is misplaced. In that matter, after a Frye hearing, the court determined that plaintiff expert witnesses' theory of mold-induced personal injury lacked general or specific causation and therefore was not deemed generally accepted in the scientific community. The court left open the possibility that another plaintiff may be successful at a Frye hearing if there is a change in scientific evidence regarding this issue. In the present matter, however, the scientific methodology and theory concerning expert validation testimony in child sexual abuse matters has already been deemed generally accepted in the scientific community. Once a scientific principle has been proven reliable, a Frye hearing need not be held every time the evidence is offered. Matter of Bethany N., 85 AD3d 1588 [4th Dept. 2011].
Fifth, the Respondent Father/PLR claimed that expert testimony regarding CSAAS has been held inadmissible in some jurisdictions, and some criminal courts only permit it to explain odd behavior of children suspected to be victims of sexual abuse, but not to render an opinion regarding the truthfulness of the child's statements. The Respondent Father/PLR claimed that the methodologies employed by Dr. Treacy are not accepted in the scientific community to explain certain types of behavior patterns, (citing Commonwealth v Dunkle, 602 A2d 830 [Pa. 1992]). In that matter, however, the criminal court in Pennsylvania found that expert testimony on SAAS is not admissible to explain the issues of delayed reporting and lack of detailed descriptions because jurors can understand those issues. Id. at 836-37. The court did not state that CSAAS is not accepted in the scientific community. Additionally, the Respondent Father/PLR cited a number of criminal court matters regarding CSAAS. The only New York case cited was a federal case. In Gersten v Senkowski, the Court of Appeals reversed the trial court's finding that the defendant received effective assistance from counsel in his criminal trial regarding sexual abuse where the defendant's counsel did not call an expert witness and failed to even consult with an expert in preparation of trial. Gersten v Senkowski, 426 F3d 588 (2d Cir. 2005). Although there is dictum in this decision related to the "Child Sexual Abuse Accommodation Syndrome," this language is not controlling, most importantly, the case involved a federal petition for habeas corpus relief pursuant to 28 USC § 2254, not a child protective Article 10 matter. As such, the rules of evidence, burden of proof and corroboration requirements differed. For these reasons, this case and the others cited are not relevant to this article 10 family court child protective proceeding.
Lastly, the Respondent Father/PLR argued that the expert failed to provide any reliable or generally accepted foundations for her sexual abuse finding, and therefore, "cannot support the evidence that would be testified to at trial." He cited People v Spicola, 16 NY3d 441 [2011], cert denied 132 SCt 400, for the principle that an expert may testify in a criminal trial about CSAAS to explain some of the contradictions to widely held beliefs about the victim's behaviors, but not to offer testimony that the child exhibited symptoms consistent with sexual abuse and not to express an opinion regarding the victim's credibility. In People v Williams, 20 NY3d 579 [2013], however, the New York Court of Appeals noted that an expert may testify about CSAAS and why a victim may have unusual behavior or behavior that is not what a juror would be expected to understand, and the expert may describe the five stages of sexual abuse but not to provide an opinion regarding the victim's credibility. Further, in People v Chad Olson, 110 AD3d 1373 [3rd Dept. 2013], the Appellate Division, Third Department affirmed the trial part's refusal to order a Frye hearing regarding the admissibility of expert testimony on CSAAS in a criminal matter, finding that expert testimony has long been admissible to aid the jury's understanding of among other things, why children may delay reporting the sexual abuse.
In sum, a Frye hearing is warranted when one seeks to introduce into evidence expert testimony regarding a "novel or experimental" scientific matter which has not yet "gained general acceptance in the scientific community" (see Frye, supra, People v Byrd, 51 AD3d 267, 274 [1st Dept. 2008]). New York Courts have accepted expert testimony regarding the reactions of children who have been sexually abused for decades (see Matter of Nicole V., supra, see also Matter of Isaiah F., 68 AD3d 627 [1st Dept. 2009]; Matter of Amber B., 39 AD3d 743 [2d Dept. 2007]; Matter of Vincent "I", 204 AD2d 878 [3rd Dept. 1994]; Matter of Linda K., 132 AD2d 149 [1987]) and therefore validation testimony has been established to be generally accepted in the scientific community. The Appellate Division held in Matter of Bethany F., 85 AD3d 1588 [4th Dept. 2011] that there was no need to hold a Frye hearing regarding the admissibility of expert validation testimony of a court-appointed mental health counselor in an Article 10 fact-finding hearing, and that since this scientific issue has been proven reliable, a Frye hearing need not be conducted. As validation testimony was clearly established by prior judicial opinions, the court finds that a Frye hearing is unwarranted in this matter. The Respondent Father/PLR's concerns regarding Dr. Treacy's purported deviations from established protocols go toward the weight the court affords her testimony, not its admissibility. The Respondent Father/PLR's remaining assertions were considered and found non-persuasive for the reasons stated above. The Court also denies the Respondent Father/PLR's motion to preclude the testimony of Dr. Treacy and her report. Clearly there are issues of fact and law that remain in dispute and must be presented to the court in a full fact-finding hearing.
If the court determines Dr. Treacy qualifies as an expert, ACS must lay the foundation regarding "the adequacy of the specific procedures used to generate evidence to be admitted," (see People v Wesley, 83 NY2d 417, 422 [1994] (court explaining that after general acceptance, there must be a proper foundation regarding the expert's appropriate steps taken and then an explanation regarding the analysis undertaken)). ACS will elicit testimony from Dr. Treacy regarding the general acceptance and reliability of the protocols she used, how she employed them when interviewing the subject child Wendy P., and all related issues. The testimony and report of Dr. Treacy is subjected to cross examination by the Respondent Father/PLR's counsel and the Attorney for the Children. The issues raised in the Respondent Father/PLR's motion may be raised at the fact-finding hearing. Additionally, the Respondent Father/PLR may present his own expert regarding these issues. After a hearing on these issues, the court shall determine what weight, if any, to afford Dr. Treacy's testimony and reports and whether, by a preponderance of the evidence, the subject child's out-of-court statements describing incidents of sexual abuse by the Respondent Father/PLR have, in fact, been reliably corroborated, and finally, whether the record supports a finding of child abuse and/or neglect.
Accordingly, the Respondent Father/PLR's motion requesting a Frye hearing or to preclude Dr. Eileen Treacy's testimony and report is denied. The matter is scheduled for the commencement of the fact-finding hearing on February 3, 2015.
DATED: Bronx, New YorkE N T E R:
January 30, 2015
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Hon. Carol Sherman, Judge
Family Court, Bronx County