Nassau County Department of Social Services v. Steven K. , 176 A.D.2d 326 ( 1991 )

— In consolidated child protective proceedings pursuant to Family Court Act article 10, the father appeals from a dispositional order of the Family Court, Nassau County (Capilli, J.), dated August 25, 1989, which, upon a fact finding order of the same court, dated April 5, 1989, made after a hearing finding that he had abused and neglected his two infant children, Meredith K. and Erika K., ordered, inter alia, that there shall be no visitation by him with the infant children until he "becomes involved in a program that specializes in incest offenders and completes said program”. The appeal from the dispositional order brings up for review the fact-finding order dated April 5,1989.

Ordered that the dispositional order is reversed, on the facts, without costs or disbursements, and the provision of the fact-finding order which sustained that branch of the amended petition which alleged that the father engaged in penile intercourse with his child Meredith is vacated, and it is further,

Ordered that the matter is remitted to the Family Court, Nassau County, for a new dispositional determination.

In January 1988 the Nassau County Department of Social Services filed amended child abuse and neglect petitions against the father on behalf of his children Meredith K., who was four years of age at the time, and Erika K., who was two and one-half years old at the time.

The petitions alleged, inter alia, that on "numerous and diverse occasions occurring prior to about October 27, 1987” the father had (1) put his penis in Meredith’s vagina, (2) inserted his fingers in Meredith’s vagina, and (3) touched the vagina of Meredith’s sibling, Erika. The petitions alleged that all of these acts threatened and endangered Meredith’s and Erika’s emotional health, safety and well being.

The allegations of abuse, heretofore described, were based on out-of-court statements made by the two children. It is well settled that out-of-court statements of a child relating to allegations of abuse are admissible at a fact-finding hearing and, if they are properly corroborated by evidence tending to support their reliability, may support a finding of abuse (see, Family Ct Act § 1046 [a] [vi]; Matter of Nicole V., 71 NY2d 112; Matter of Christina F., 74 NY2d 532; Matter of Ely P., 167 AD2d 473; Matter of Laura W., 160 AD2d 585). Corroboration may take the form of "validation testimony” of experts regarding their investigations of the underlying complaints (Matter of Linda K., 132 AD2d 149, 157; Matter of Nicole V., supra, at 121) as well as in camera statements by the child (see, Matter of Tina H., 123 AD2d 864; Matter of Dana F., 113 AD2d 939, 940). In the instant proceeding, the Family Court held, inter alia, that the validation testimony of a social worker, Yael Layish, constituted sufficient corroboration of the aforenoted allegations of abuse. We agree with this ruling and disagree with our dissenting colleague’s view that Ms. Layish was incompetent to serve as a validator. On the contrary, the credentials and competence of Ms. Layish are amply established in this record.

Ms. Layish testified on direct examination that she worked at the Family Crisis Clinic Program "doing evaluations of physical abuse, neglect and child sexual abuse allegations and treatments of children and their families”. In response to a question about her licenses, she responded that she received "[her] Masters in 1978 [her] C.S.W. a year after that, and the A.C.S.W. about two years after the C.S.W., and the Diplómate, a year ago”. Moreover, contrary to the suggestion in the dissent, the 40 to 45 validations in child abuse cases that Ms. Layish conducted with Kate Fitzgerald were not done under Ms. Fitzgerald’s supervision, but were done jointly with Ms. Fitzgerald. As Ms. Layish clearly stated: "We are doing it jointly, Kate Fitzgerald does not supervise”. More importantly, Ms. Layish testified that she used "the Suzanne Sgroi Protocol as a standard or guideline” in her evaluations of the children. Indeed, one of the father’s witnesses, Dr. Allen Levy, an expert in the field of child psychiatry, testified that as part of his training, he attended a two-day training seminar given by Suzanne Sgroi, and also admitted that (1) the Suzanne Sgroi handbook is "considered the bible so to speak” and (2) Ms. Layish’s use of anatomical dolls was an accepted and good tool in determining cases of child abuse.

The dissent also relies on the fact that the parents were involved in a bitter divorce, and that allegations by one parent against another concerning sex abuse of a child must be treated with great caution in that particular context. Suffice it to say, Ms. Layish was fully cross-examined on this issue, as well as on her failure to examine the children in the presence of the parents, and nevertheless held steadfastly to the view that the children’s allegations were worthy of belief. The dissenter’s specific reliance on the fact that the mother carved an obscenity into the family car with a key was explained by the mother as a response to the father’s violent physical attack on her when she tried to leave the house and use the car. In any event, that incident is irrelevant on the issue of Ms. Layish’s qualifications, competency and credibility. In a final attempt to discredit Ms. Layish, the dissent alleges that Layish’s testimony was somehow fatally skewed since she was a member of the same "Family Crisis” Team which had originally referred this matter to the Nassau County authorities. This allegation is totally without foundation in the record. In short, the out-of-court statements of the children concerning the allegations of abuse were sufficiently corroborated by the testimony of the validator Ms. Layish.

In its findings of fact, the Family Court summarized all of the relevant testimony including, inter alia, the corroborating validation testimony of Ms. Layish and the medical testimony of Dr. Bruce Bogard, head of the Child Protection Team at Long Island Jewish/Hillside Medical Center. The Family Court noted that Ms. Layish had testified that "Meredith had vaginal intercourse with her father” and Erika was the victim of "inappropriate sexual conduct” by her father including touching "her vagina with his penis”. The Family Court then made a finding, based, inter alia, on the testimony of Ms. Layish and Dr. Bogard, who had testified that it was possible for a child of the age of two to four years old to have undergone digital penetration without leaving a mark on the hymen, that the "petitioner has established the allegations in its petition by a fair preponderance of the evidence with respect to both children and the Court makes an affirmative finding of abuse and neglect against the respondent”. Under the circumstances, it is clear that the Family Court complied with Family Court Act § 1051 (a) which provides that the Family Court "shall * * * enter an order finding that the child is an abused child or a neglected child” and "shall state the grounds for the finding” of abuse and neglect. There is no requirement in Family Court Act § 1051 (a) that the Family Court, in its decision, must refer to each specific allegation of abuse and neglect in the petition. Consequently, there is no merit to the dissent’s argument that the Family Court’s order is defective as a matter of law in this regard. In any event, this omission, as well as the Family Court’s failure to make a "further finding of the specific sex offense as defined in article one hundred thirty of the penal law” (Family Ct Act § 1051 [e]), is of no serious moment. On the instant record, this court can, in order to save judicial time and avoid multiplicity of litigation, make the finding that the Family Court should have made (see, Fischer v Fischer, 45 AD2d 917). Accordingly, we find, based on the aforenoted testimony of Ms. Layish and Dr. Bogard, that the petitioner proved by a preponderance of the evidence that the father inserted his fingers in Meredith’s vagina and touched Erika’s vagina, as alleged in the petitions, in violation of Penal Law § 130.65.

However, we find that the allegation of the father’s penile intercourse with Meredith, even though corroborated by Ms. Layish, was not proven by a preponderance of the evidence. Specifically, the validator testified that, based on her interviews and sessions, Meredith was subject to penile intercourse with her father on at least several occasions. However, the petitioner’s medical witness, Dr. Bogard, testified that Meredith had "a normal prepubertal vagina”. Dr. Bogard observed a red spot and a tiny healed scar on Meredith’s hymen and noted that the hymen was "open about five millimeters as measured”. Dr. Bogard admitted on cross-examination that a five millimeter opening was within normal parameters for a child of Meredith’s age and that the red spot and the tiny scar could have been the result of several other causes, including a straddle injury such as climbing a fence or riding a bicycle. The medical witness of the respondent father, Dr. Jeffrey Gilbert, confirmed that a five millimeter opening in the hymen was a normal finding for a child of Meredith’s age, and noted that the two spots thereon were insignificant with respect to the issue of penile intercourse. Dr. Gilbert further stated that if repeated instances of penile intercourse had taken place as alleged in the petitions, the hymen "would show either a complete rupture or areas of tears or rips or scars over a period of time”.

The dispositional order suspended the father’s visitation until he "becomes involved in a program that specializes in incest offenders and completes said program”. In so holding, the Family Court took the somewhat unusual step of rejecting the recommendation of the Nassau County Probation Department that supervised visitation with the father be continued. Since the Family Court’s disposition may have been based, in part, on a finding that the father engaged in penile intercourse with his child Meredith, and that finding has been specifically rejected by this court, we deem it appropriate to remit this matter to the Family Court for a new dispositional determination.

We have examined the father’s remaining arguments and find them to be without merit. Mangano, P. J., Harwood and Balletta, JJ., concur.