Yesterday, the Second Judicial Department of the Appellate Division of the New York State Supreme Court unanimously rejected an appeal by the Rockland County Department of Social Services of a Family Court decision which ruled that DSS had not presented sufficient evidence to show that Louis G. had abused his older daughter. Witnesses did testify at the fact-finding hearing that Nicole G. divulged alleged incidents of abuse "to the social worker at her school, the investigating detective, and a child protective services caseworker." Furthermore, "a handwritten narrative by Nicole G. which conformed to these disclosures was admitted into evidence." However, Nicole, who was fourteen-years-old when the abuse was alleged, refused to testify in Family Court, even after being subpoenaed. In fact, the appellate court said she "adamantly" refused to testify.
The Appellate Court went on to say: "Although the witnesses essentially cross-corroborated each other's testimony, the petitioner was required to establish competent, nonhearsay, relevant evidence to reliably corroborate, or "validate," the out-of-court disclosures (see Matter of Jada K.E. [Richard D.E.], 96 AD3d at 745; Matter of Linda K., 132 AD2d 149, 157)."
The child sexual abuse expert who testified on behalf of DSS was also unable to corroborate the testimony of the witnesses. Said the court: "The expert failed to identify the generally accepted professional protocols adhered to in the mental health and medical communities and compare them to the protocol she employed. The expert opined that Nicole G.'s "behavior" and "affect" were consistent with that of a sexually abused child, but she did not render a professional opinion with a reasonable degree of certainty that it was likely the abuse occurred."
DSS had also claimed that Louis G.'s other daughter was derivatively neglected on the basis of the alleged abuse of the older daughter. Rockland County Family Court ruled, and the Appellate Court concurred, that because there was insufficient evidence to prove abuse, then the younger child could not have been neglected.
While out-of-court statements can be used in abuse and neglect proceedings, they must be sufficiently corroborated, and Family Court is given a lot of latitude as to accepting or rejecting those statements. Therefore, Rockland County Family Court did not err in its decision, the Appellate Court said.
The entire decision can be read here.