Family Law Keyed to Weisberg

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In Re Jaclyn P

Citation. In re Jaclyn P., 179 A.D.2d 646, 578 N.Y.S.2d 252, 1992 N.Y. App. Div. LEXIS 250 (N.Y. App. Div. 2d Dep’t Jan. 13, 1992)

Brief Fact Summary. Respondent was accused of sexually abusing his children, and evidence was adduced from various sources to support this allegation at trial. The trial court held that respondent’s evidence refuted this evidence and thus a case against respondent was not made by a preponderance of the evidence.

Synopsis of Rule of Law. The testimony of various experts, including psychiatrists and pediatricians, is used as evidence to support civil allegations of sexual abuse.

Facts. Respondent Robert P., the father of Melissa P. and Jaclyn P., had proceedings commenced against him alleging that he had sexually abused and neglected both daughters. Melissa’s mother testified that she first learned of the abuse when her niece and her daughter Jaclyn both reported that Melissa had hurt them by placing her fingers inside their vaginas. Melissa reported she had been playing the doctor game taught to her by her father, and that her father had also taught her the weenie game, in which he placed his penis in her mouth. She also stated that Melissa had been exhibiting behavioral problems and suffered from nightmares. Melissa’s mother contacted Child Protective Services (CPS) who sent a caseworker to meet with Melissa twice monthly for 25 visits. On one visit, Melissa described the doctor game and demonstrated by poking her fingers between the legs of a stuffed animal. She reportedly told the caseworker that her father touched her in the same manner. Melissa
was taken to see a psychiatric social worker, who testified that Melissa told her in detail how respondent had molested her. She also testified that in her opinion Melissa acted in a manner consistent with that of a sexually abused child, and that she did not believe Melissa had been coached. A pediatrician examined Melissa for physical signs of sexual abuse, but found nothing unusual. He testified that abuse may occur without resulting in physical findings. A board-certified child psychiatrist testified that he interviewed Melissa, her mother, her father, and her younger sibling. He acknowledged the possibility that Melissa had been coached, but stated it was his opinion that she showed signs consistent with being a victim of sexual abuse. A pediatric urologist testified for respondent, saying that he found no physical evidence of sexual abuse. He conceded that such evidence is often not present in victims of abuse. Melissa’s paternal grandmother testified that she supervised
Melissa’s visitation with her father and that Melissa never complained to her of any problems. A psychologist and family therapist hired by respondent testified that he observed Melissa and Jaclyn interact with their father on two occasions, and described a warm, bonding, nurturing type of relationship. He opined that the allegations of abuse were unfounded, but the observation occurred over a period of a couple of hours, and he never spoke to the children nor their mother. Respondent denied that he abused his children sexually. He asserted that the allegations were fabricated by his wife, who was engaged in an extramarital affair and was trying to influence future custody determinations. A psychologist testifying as the court’s expert saw the respondent over several sessions. He refused to submit to two tests she would have administered, and she found him to be defensive and suffering from a nonspecified personality disorder. His refusal to cooperate fully prevented her from
determining if he was aroused b deviant sexual stimuli, and she offered no opinion as to if he abused his children. The court conducted an in camera interview of Melissa, but she refused to cooperate. The Family Court dismissed the opinion, finding the evidence even and thus the case had not been proven by a preponderance of the evidence.

Issue. Did the trial court err by finding that allegations of sexual abuse and neglect by respondent had not been demonstrated by a preponderance of the evidence?

Held. The allegations of abuse were established by a preponderance of the evidence.
Although the trier of fact is entitled to deference, this Court finds that the weight of the evidence is so strongly in favor of a finding of sexual abuse that the petition should be sustained. Melissa’s mother recounted the allegations revealed to her. This was corroborated by the validation testimony of the independent court-appointed psychiatric social worker. Melissa also told the social worker of her father’s abusive actions on several occasions, and it is unlikely Melissa could maintain such consistent fabrications. Other than respondent’s denials, the only evidence supporting a finding that Melissa was not abused was provided by respondent’s paid expert. This Court finds his limited access to the children and the limited scope of his analysis renders his opinion unpersuasive. Respondent’s other expert witnesses similarly are unpersuasive.

Discussion. This case demonstrates the different testimonial evidence available in cases of sexual abuse, and how the court should evaluate the testimony.