Petitioner asserts that neglect should have been found here “as a matter of law” on the basis that respondent committed “other acts of a similarly serious nature requiring the aid of the court” (Family Ct Act § 1012 fib). We disagree. At the fact-finding hearing, the mother testified as to statements and behaviors indicating that the child was afraid and distressed due to threatening conduct by respondent, but Family Court declined to credit her testimony in light of the parents’ contentious history and noted the absence of corroborating evidence or testimony connecting the child’s alleged behavior with any statements by respondent.

Although Family Court characterized certain statements made by respondent as “totally inappropriate, uncalled for and childish,” it determined that there was no evidence that his conduct caused harm beyond momentary emotional upset or otherwise rose to the level of neglect. We concur with Family Court’s characterization of respondent’s highly inappropriate and troubling behavior.

However, according great deference to Family Court’s factual findings, which will only be disturbed if they lack a sound and substantial basis in the record, we agree with Family Court that petitioner failed to meet its burden of demonstrating that respondent neglected the child.

Petitioner also challenges Family Court’s refusal to qualify the child’s licensed mental health counselor as an expert witness. Before admitting expert testimony, a court must determine whether a proposed expert possesses the requisite skill, training, education, knowledge and/or experience to qualify as an expert on the particular matter at issue in light of prevailing professional standards, and whether to admit the testimony of an expert witness is generally left to the trial court’s discretion. Given this counselor’s admitted lack of specific expertise in diagnosing child sexual abuse and her unfamiliarity with the professional standards and protocols pertaining to that field, we discern no basis to disturb Family Court’s ruling.

Although petitioner does not squarely assert that the determination lacks a sound and substantial basis with respect to the abuse allegations, it bears noting that there were several deficiencies contaminating the interview where the child’s purported disclosures were made.

In its decision, Family Court reviewed and carefully analyzed that interview, informed by the expert opinions of the court-ordered forensic evaluator. The evaluator testified that there was no credible evidence that respondent had committed any sexual abuse against the child and opined that petitioner’s caseworkers mishandled their interview of the child.

She noted that petitioner’s caseworkers repeatedly deviated from guidelines and best practices for child forensic interviews, including by failing to establish the child’s ability to understand the importance of telling the truth and elicit a commitment from her to do so, involving two individuals in the interview, allowing their interview of the then-six-year-old child to go on for more than 2½ hours, far exceeding age-based duration recommendations, using anatomical dolls and diagrams in a suggestive manner, providing distracting toys in the interview room, interacting with the child in a manner that encouraged imagination and creativity rather than truth-telling, and failing to follow up on the child’s description of implausible details related to allegations of sexual contact.

The evaluator also observed that the child’s description of the alleged conduct “morphed” over the course of the interview with petitioner’s caseworkers, whose questioning the expert characterized as unbelievably leading, coercive and closed ended and egregious and unconscionable. The evaluator conducted her own interview, where the child initially made no allegation, then alleged that respondent touched her vagina while she was sleeping, and subsequently admitted that she had been lying.

Matter of Andreija N., – NYS3d – , 2022 WL 1786662 (3rd Dep’t.  2022)

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