Matter of D.M.

[*1] Matter of D.M. 2010 NY Slip Op 51906(U) [29 Misc 3d 1220(A)] Decided on November 8, 2010 Family Court, Bronx County Gribetz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 8, 2010
Family Court, Bronx County

In the Matter of D.M. Y.S. G.R. Children under the age of eighteen years alleged to be abused by Mr. M., Respondent.



NA 3358-60/09



Appearances:

Angela Karounos, Esq., Special Assistant Corporation Counsel, Family Court Legal Services, for the Petitioner

Eugene McGloin, Esq., for the Respondent Father, "Mr. M."

Children's Law Center, by Cara Simonetti, Esq. and Deborah Gould, Esq., for the child "D.M."

Kevin McAllister, Esq. for the children "Y.S." and "G.R."

Sidney Gribetz, J.

This case presents the issue of whether the out-of-court statements of an almost four year old subject child that her father sexually abused her were sufficiently corroborated so as to support a finding of abuse. The Court issues this written decision to amplify and clearly set forth the reasoning stated on the record, dismissing the case for the failure to sufficiently prove the corroboration of the child's statements, as required by Family Court Act section 1046 (a) (vi).

BACKGROUND

The Child Abuse petition filed by ACS alleged that the subject child D.M. (d.o.b. December 26, 2004) disclosed to her mother, Ms. L., that on or about December 7, 2008, her father Mr. M. kissed her on her vagina. The petition further alleged that the subject child also disclosed to a social worker at the Child Advocacy Center at New York Presbyterian Hospital that the Respondent Mr. M. exposed his penis to her, touched her buttocks with his penis and touched her vagina with his hands. There is no time frame given for these additional allegations. The petition goes on to allege that D.M. is an abused/or neglected child, and Y.S. (d.o.b. November 9, 2005) and G.R. (d.o.b. August 25, 2007) are derivatively neglected.

At the time of the events at issue, Mr. M. was living with his girl friend K.D. and her son, Y.S.. The child D.M. was living with her mother, Ms. L.. Ms. L. had obtained an temporary order of protection against Mr. M. in unrelated litigation in 2006, and Mr. M. accordingly had not [*2]seen D.M. for some time. In July 2007, Mr. M. had filed a petition for visitation, which was litigated before another Judge of this Court. Under judicial oversight on that docket, Mr. M. was first provided supervised visits with the child, and eventually was authorized to have unsupervised day visits with the child on Sundays. December 7, 2008, the date of the alleged abuse, was the third time that Mr. M. and D.M. had an unsupervised visit pursuant to this order.

Parenthetically, the petition alleges that Mr. M. is the father of a child, G.R., together with a woman named J.R. who lived in Brooklyn. While ACS charges that this child is derivatively neglected, during the entire time that this matter has been investigated by ACS and litigated before this Court, neither ACS nor anyone else connected with this case have ever seen J.R. or the child.

THE EVIDENCE AT FACT FINDING

At the fact finding hearing, the Petitioner ACS, although it entered in to evidence the State Central Registry Oral Report Transmittal and reports from New York Presbyterian Hospital, presented no competent evidence regarding the allegations that the Respondent exposed his penis to the child, touched her buttocks with his penis, or touched her vagina with his hands. ACS did not appear to pursue those allegations.

The Petitioner proceeded on the allegation that Mr. M. kissed D.M.'s vagina during a visit on December 7, 2008. In support, ACS submitted in to evidence the out-of-court statements of the child in this regard, and attempted to provide the necessary corroboration by way of a "validator", Dr. Don Lewittes. This evidence is summarized as follows.

The first witness to testify was Don Lewittes, Ph.D, and his November 19, 2009 report as well as the DVD recordings from his August 31, 2009 and September 30, 2009 interviews with D.M. were entered into evidence. Dr. Lewittes was qualified as an expert witness in the field of psychology and child sex abuse. In describing his methodology, Dr. Lewittes testified that he basically followed the guidelines of APSAC (a society of psychologists specializing in the abuse of children) , an organization of which he is a long-time member, and also borrowed from other protocols. In his written report he stated that he followed a standard format which combined recommendations from APSAC, the NYS Committee on Best Practices, and the APA ("American Psychological Society"). However, neither in his testimony nor in his written report did he specify what these protocols were. Dr. Lewittes also stated that he reviewed various documents in the files regarding the child, but during his testimony he did not clearly recall the details of this important case history, and he did not specify them in his report.

Dr. Lewittes interviewed the child on two occasions. The first interview, on August 31, 2009, was only with D.M. and was a basic session in which he attempted to establish a rapport with the child and assess her competency. The second interview, on September 30, 2009, was the one where he dealt with the merits of the situation. It began solely with the subject child, and then included the non-respondent mother Ms. L.. A review of the DVD recording of this [*3]interview demonstrates that the subject child did not make any disclosures regarding her father, and repeatedly said nothing bad happened, and was happily playing with crayons and Play-Doh. When Dr. Lewittes did not get an answer he seemed to want, he asked similar questions repeatedly. Dr. Lewittes then invited her mother, Ms. L., into the room, and she jointly participated in the interview. The child still did not make any statements that her father did anything to her. The eventual disclosure that her father kissed her on her vagina was not made until after numerous leading questions by Dr. Lewittes and only after the subject child had consulted with her mother a number of times. The DVD's also demonstrate that there may have been some confusion for the subject child as to the difference between "telling the truth" and "telling a lie", which is also set forth in Dr. Lewittes' report, although Dr. Lewittes refers to her confusion only "at first".

Dr. Lewittes concluded with a reasonable degree of psychological certainty that the child "demonstrates consistency with children who have been found to be victims of sexual abuse".

ACS next put the non-respondent mother, Ms. L. on the stand. Ms. L. testified that Mr. M. had begun unsupervised visits on or about November 16, 2008 and the third unsupervised visit was on or about December 7, 2008. Ms. L. testified that on December 7, 2008, she received a call from Mr. M. that he was running late, so she brought D.M. to the police precinct at around 12:00 Noon, and Mr. M. came to the precinct around 1:00 P.M. to pick her up for his visit, and returned her to the precinct around 6:00 or 6:30 P.M.. Ms. L. testified that when she returned home with D.M. that evening, and was changing D.M.'s diaper (which she wore to sleep), D.M. said "Papi David kissed my popola", which Ms. L. testified to is Spanish slang for vagina. Ms. L. testified that she called Mr. M. twice that evening, to ask him what had happened, and on the first call, she put D.M. on the telephone. Ms. L. further testified that subsequent to D.M.'s December 7, 2008 visit with her father, that D.M. touched herself twice on her vagina, as well as verbally repeating to others what had transpired with her father.

The next witness put forth by ACS was its caseworker, Fatimah Latif. Ms. Latif testified that she received a report from the state central registry, which had been called in by Annette Zygmunt, D.M.'s therapist. Ms. Latif testified that she interviewed D.M. on December 16, 2008, and D.M. first indicated that no one touched her in a bad way, but then went on to say that Papi David kissed her popola, and pointed to her vagina. She testified that D.M. first told her that Papi David kissed her without her panties, and then D.M. said that her panties were on. She also testified that D.M. told her Papi David had a birdcage and two birds. Ms. Latif testified that when she made a visit to the home of Mr. M. and his girlfriend, K.D., there was no bird cage. Ms. Latif also testified that during her investigation D.M. was upset that she was not able to see her father. Further testimony was elucidated that D.M.'s therapist, Dr. Zygmunt, indicated that the child did not display any sexualized behaviors.

For the defense, the Respondent's attorney presented the testimony of Mr. M. and K.D. as to their version of the events of December 7th, and also offered the testimony of a psychologist, Dr. Arthur Quatrano, retained by counsel. Dr. Quatrano was presented to critique the assessment [*4]of Dr. Lewittes.

Dr. Quatrano, a forensic psychologist with wide experience with sexually abused children, testified that Dr. Lewittes violated standard methodologies in his questioning of the child, and significantly, by having the mother present during his interviews. Additionally, he criticized Dr. Lewittes's reliance on hearsay outside sources and reports without specifying the reports relied on, and without following up with the sources of those reports to corroborate their veracity, all in violation of APSAC and APA guidelines. Dr. Quatrano also criticized the failure of Dr. Lewittes not to investigate any family history, or to include in his analysis factors such as Delainee's being in therapy for over one year, and the two year history of prior custody and visitation litigation between the parents.

K.D. testified that on December 7, 2008, Mr. M. called her after picking up D.M. from the precinct, and they arranged for K.D. and her son Y.S. to meet Mr. M. and D.M. downstairs in Mr. M.'s car. K.D. testified that they did meet Mr. M. and D.M. downstairs and they drove to and spent the day shopping at the Cross County Mall in Yonkers. K.D. testified that at no time did they bring D.M. to the apartment, which at that time K.D. and Mr. M. shared. K.D. further testified that after shopping and eating at Burger King, they drove directly back to the precinct so Mr. M. could drop D.M. off.

The Respondent, Mr. M. was the last to testify. He testified that on December 7, 2008, he went to work in the morning and was running late. He picked D.M. up at the precinct around 2:30 P.M. The Respondent testified to the same sequence of events that K.D. testified to, which at no time involved going inside the Respondent's home.

FINDINGS

I credit the testimony of Ms. L. and Ms. Latif and find that the child D.M. did make the statements to them.

As to the defense, I observed the demeanor of K.D. and Mr. M. when they testified, and there was nothing in their demeanor to indicate to me that they were lying as to their description of the events of December 7, 2008. However, most clearly they are "interested witnesses", so I can not give much weight to their version of the events. However, this is not the main area of inquiry in regard to my fact finding ruling.

The vital factor for the court is to determine whether the out-of-court statements of the child were sufficiently corroborated. ACS offers Dr. Lewittes's expert opinion as the corroboration; however, based on my evaluation of his testimony and report, and my careful observation of the recordings of his interviews with the child, I find that his opinion can not be credited.

DISCUSSION[*5]

In Family Court child protective practice, "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... shall be sufficient corroboration." (Family Court Act section 1046 (a)(vi).) In the landmark case of Matter of Nicole V., 71 NY2d 112, the Court of Appeals authorized the now common procedure in cases of alleged child sex abuse of corroboration of the child's statements by means of expert testimony by a social worker, psychologist or similar professional utilized as a "validator". (See also, e.g., Matter of Jaclyn P., 86 NY2d 875). Validator testimony does more than just vouch for the credibility of the child; the validator must issue an opinion, in the traditional manner of a qualified expert witness, that, for example, the child's behavior is consistent with being abused, or that the child's statements parallel those normally made by abuse victims. (See, e.g., Matter of Nikita W., __ AD3d __; 2010 NY Slip. Op. 07634, App Div 3d Dept, ,and cases cited therein). While there is a relatively low degree of corroboration required, there is nonetheless a threshold of reliability that the evidence must meet, a "fine judgment" entrusted to the Family Court. (See, e.g., Matter of Jared XX, 276 AD2d 980). As revealed by our experience in Family Court and the myriad of case law in this area, the psychological fields and organizations such as APSAC and the APA have developed scientific guidelines and protocols for the interviewing and assessment of child victims by validators. (See, e.g., Matter of Kayla J., 74 AD3d 1665).

Dr. Lewittes testified that for his methodology in the instant case he borrowed from various protocols, but he never described what those protocols were, or why he borrowed parts from several. Courts have upheld validators usually when they strictly follow accepted protocols (see, e.g., Matter of Nikita W., supra; compare, Matter of Kayla J., supra). Dr. Lewittes also violated standards by having the mother present and consulted with during his interview with the child (Matter of Keala XX, 217 AD2d 745). I also agree with Dr. Quaranto's observation that the reference of Dr. Lewittes to outside reports without specifying them in his report or following up with the sources of those reports violated guidelines in the field. In sum, I find that I can not credit Dr. Lewittes's expert opinion because it is not based on any methodology of scientific rigor.

I am also troubled, as was Dr. Quaranto, by the failure of Dr. Lewittes to investigate or take into account any family history, the child's ongoing therapy, or the custody and visitation litigation between the parents. Given that the alleged abuse occurred on just the third unsupervised visit under that litigation, these factors would be significant for expert psychological or social work attention.

Finally, I am very troubled from my observations of Dr. Lewittes's interview of the child.

His session was rife with leading questions, which call in to question the reliability and veracity of the young child's responses. He also repeated areas of inquiry when he wasn't satisfied with the child's answers, and then called the mother in to the room. The overall impression of these factors in my observation of the interview, entered in to evidence, impairs the reliability of the process, in my estimation, and detracts from the credibility of Dr. Lewittes's opinion. [*6]

For all of the foregoing reasons, I find that the Petitioner ACS has not met its burden of sufficiently corroborating the child's out-of-court statements. Accordingly, the evidence presented can not support a finding of abuse or neglect, and the petition is dismissed.

Dated: November 8, 2010