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Plaintiff Brings Child Custody Proceeding



In a child protective proceeding pursuant to Family Court Act article 10, the Law Guardian appeals from so much of an order of the Family Court, Westchester County, entered January 5, 1989, as granted those branches of the father’s motion which were to compel the production of his daughter for examinations by a medical doctor and either a psychiatrist or psychologist of the movant’s choice.

This child protective proceeding is brought by the Westchester County Department of Social Services pursuant to Family Court Act article 10, alleging that the daughter had been sexually abused by her father. Thereafter, the father moved, inter alia, for a physical examination and a psychiatric or psychological evaluation of the daughter, to be conducted by licensed professionals of his selection. The Family Court granted this relief.

At the time of the father’s motion, the Family Court had inherent power, under Family Court Act § 251, to subject any person in its jurisdiction to an examination by a physician, psychiatrist or psychologist appointed or designated for that purpose by the court. This statutory provision, applicable in general to all proceedings under the Family Court Act, expressly required the examination to be performed by a court-appointed professional and not one chosen by a party to the proceeding.

Effective July 24, 1989, the Legislature amended Family Court Act § 1038(c)–a discovery statute applicable to child protective proceedings–to provide that “a respondent or law guardian may move for an order directing that any child who is the subject of a proceeding under this article [article 10] be made available for examination by a physician, psychologist or social worker selected by such party or law guardian. In determining the motion, the court shall consider the need of the respondent or law guardian for such examination to assist in the preparation of the case and the potential harm to the child from the examination. Nothing in this section shall preclude the parties from agreeing upon a person to conduct such examination without court order.” With few exceptions not relevant herein, an appellate court, as a general rule, gives effect to the applicable law as it exists at the time of the appeal and not in accordance with the law as it was at the time of the original determination.

Accordingly, the propriety of the granting of the father’s applications must be assessed in accordance with Family Court Act § 1038(c).

In many child protective proceedings, the most damaging evidence a respondent must face is hearsay or unsworn testimony of the subject child admitted under Family Court Act § 1046(a)(vi). Furthermore, psychiatric and psychological validation evidence is finding wide acceptance in child protective proceedings as corroborative proof of the child’s hearsay statements and unsworn testimony. An expert confirms or disaffirms the existence of “intrafamilial child sex abuse syndrome”.

It cannot be seriously disputed that the information sought by the father from an examination of the allegedly abused child by either a psychiatrist or a psychologist is material and necessary to the preparation of his defense. Expert testimony derived from such examinations will “inform the court of the test subject’s involuntary bodily reactions when asked specific questions, information which the court, as trier of the facts, could neither obtain nor interpret otherwise”. Moreover, the art or science of psychiatry and psychology “is not so precise that the opinion of a single ‘impartial’ expert resolves all issues. Rather, the reverse is true–the larger the pool of experts, the greater the stream of potentially useful information made available to the court”. Thus, in the absence of special circumstances or potential harm to the subject child, the fact that a validation interview had previously been conducted does not render an examination of the infant whose condition is in controversy by a psychologist or psychiatrist of the respondent’s selection unjustified.

Here, the mere fact that the child is a child of tender years, albeit a serious consideration, does not override the demonstrated need for such an examination to be conducted by a qualified professional capable of minimizing any possible stress stemming from the examination. This discovery device is readily distinguishable from an examination before trial conducted by the adversary’s attorney, which could be traumatic to a child of tender age and might result in harm to the child’s well-being due to its potential for intimidation and embarrassment. Accordingly, we conclude that so much of the order as grants the respondent’s application to produce the daughter for an evaluation by a qualified psychiatrist or psychologist of his choice was proper.

At the time the court ordered the examination, Family Court Act § 1038(c) was not in effect, and a Family Court Judge was empowered only to authorize a court-appointed expert to conduct the examination. Six months after the entry of the order appealed from, the Legislature enacted Family Court Act § 1038(c). Because it authorizes an examination in a more adversarial context, the statute contemplates the exercise of judicial discretion in weighing the benefits of examination as against any potential harm to the child.

“Nevertheless we find that it was inappropriate for the court to order an examination of the children by the mother’s psychiatrist. Family Court Act § 251 gives the court the inherent power to subject any person in its jurisdiction to an examination by a ‘physician, psychiatrist or psychologist appointed or designated for the purpose by the court’. The statute makes it clear that the examination should be done by a court appointed professional and not one chosen by a party to the proceeding.

Thus, we are all in accord that the order appealed from permitting the father to select a physician or psychiatrist or psychologist of his choice to examine Jessica was contrary to the law as it existed on January 5, 1989, when the order was entered. However, as the majority notes, it is applying the applicable law as it exists at the time of the appeal rather than the law at the time of the original determination. Therefore, we must apply Family Court Act § 1038(c), which went into effect on July 24, 1989, six months after entry of the order appealed from. While the prior law required evaluations to be performed by court-appointed experts pursuant to Family Court Act § 251, the new statute permits second examinations to be conducted by other than court-appointed professionals under certain circumstances, upon the application of a respondent, law guardian, or social services worker.

The statutory language explicitly requires that the court apply a balancing test prior to subjecting the alleged child victim to duplicative physical or psychiatric examinations, by expressly mandating that “the court shall consider the need of the respondent or law guardian for such examination to assist in the preparation of the case and the potential harm to the child from the examination”. The court is thus specifically required to weigh the potential harm to the child from the examination against the need of the respondent or the law guardian for such an examination in order to assist in the preparation of the case.

In applying the balancing test required by Family Court Act § 1038(c) to the facts at bar, I find the scale is tipped heavily against granting the father’s application for a second psychiatric/psychological evaluation of Jessica by a professional chosen by him. The potential trauma to Jessica substantially outweighs the father’s need for this discovery in order to prepare for the trial of this proceeding in which he, as the respondent, is alleged to have abused her.

The allegations of sexual abuse by the father were first enunciated by the mother in response to the father’s petition for a writ of habeas corpus. At that time, in court, the mother alleged that the child had stated to her that she had been sexually abused. As a result of the mother’s allegations, the court ordered an immediate investigation. The child was then interviewed by a case worker from the Westchester County Department of Social Services and was examined by a physician and therapist selected by the DSS. Based upon the results of these evaluations, the DSS filed a petition alleging that the father had sexually abused the child in July 1988 in that he “placed his hand under the underpants of the subject child, Jessica [and] placed his penis on the subject child[‘s] crotch and ejaculated on her dress”. Even the initial examinations which were essential to the founding of the allegations and the filing of the abuse petition by the DSS were significantly traumatic to this child.

Significantly, in the case at bar, the father has not challenged the qualifications, bias or independence of the experts who have already examined the child, although the curricula vitae of both experts have been disclosed to him. There is no claim that either expert was selected by the child’s mother or that she had any prior or present relationship with them. Even if the child’s therapist had had a relationship with her, the Court of Appeals has held that, under such circumstances, the therapist should not be disqualified from giving evidence that the child was sexually abused, reasoning that any alleged bias of the expert could be addressed on cross-examination by the respondent.

Moreover, the father, although he was provided with copies of the forensic evaluations and records, has failed to suggest that the performed examinations were in any respects inadequate or deficient. This court, in a custody proceeding, denied further psychiatric evaluation of one spouse by the other’s privately-retained expert, holding that where court-ordered forensic examinations have been conducted, and not a single reason was presented in support of the application for further evaluations, it would be an abuse of discretion to compel an adult party to submit to duplicative, harassing evaluations by a privately-retained expert. A nonparty child victim deserves no less protection.

That the interrogation of a young child regarding incidents of sexual abuse may be highly traumatic has been acknowledged by the courts, as well as by the explicit terms of the new statute, Family Court Act § 1038(c), which recognizes that the examination may be potentially harmful.

Nor will a denial of the father’s application for an evaluation by experts of his own choosing deny his due process rights under the circumstances, or preclude his reasonable preparation for trial. He has received the disclosure obtained by the DSS and the forensic experts’ reports and records. He is in fact entitled to utilize all normal discovery processes other than the unjustified intrusive subjection of the child to additional physical and psychosexual evaluations. He will be able to depose the experts and parties prior to trial, 1 to cross-examine the experts, as well as to present his own expert, who will have had an opportunity to evaluate the reports that have been provided by the impartial experts. There is no reason to assume that experts provided by the father would be more capable of evaluating the child, or more honest in the evaluation of the child, than those selected by the DSS, a party unrelated to either the father or the mother in this case.

However, upon the court’s review of this record, it was an improvident exercise of discretion to direct the child to be produced for a second physical examination by a physician. The records of the doctor who already conducted a medical examination of the child, discloses that the first attempt to complete the examination was aborted due to the child’s excessive anxiety and fright. Upon the child’s return for the completion of vaginal and rectal cultures, the daughter had to be placed under light sedation. Under these circumstances, the potential harm to the child outweighs the father’s need for a second physical examination, which need can be readily satisfied by employing other available discovery devices.

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