Matter of L.P.G. (L.B.)

Summary

The New York Appellate Division, First Department modified a Family Court fact-finding order by vacating findings that the respondent excessively abused alcohol and abused V.B.G., while affirming findings that the respondent sexually abused L.P.G. and derivatively neglected the other children. The court also dismissed appeals from the disposition and amended visitation orders as abandoned.

Holdings

1. The finding that L.B. sexually abused L.P.G. was supported by a preponderance of the evidence.
2. Statements made by L.P.G. to her treating psychologist were independently admissible and did not require corroboration because they were relevant to treatment and diagnosis.
3. Expert testimony from the child's treating psychologist was not required to establish a prima facie case of sexual abuse.
4. The derivative neglect findings as to G.P.G., V.B.G., and L.B. were proper, including as to children who were not yet born when the abuse of L.P.G. occurred.
5. ACS failed to prove by a preponderance of the evidence that L.B. neglected the children by excessively abusing alcohol, so that finding was vacated.
6. The abuse finding concerning V.B.G. was vacated because it appeared to be a scrivener's error.
7. There was no basis to disturb Family Court's credibility determinations.

Questions Presented

1. Whether the evidence established by a preponderance of the evidence that L.B. sexually abused L.P.G. through forcible touching for the purpose of sexual gratification.
2. Whether L.P.G.'s statements to her treating psychologist were independently admissible and whether corroboration or expert testimony was required to establish sexual abuse.
3. Whether the evidence supported derivative neglect findings as to G.P.G., V.B.G., and L.B., including the two youngest children who were not born when the abuse of L.P.G. occurred.
4. Whether ACS proved that L.B. neglected the children by excessively abusing alcohol under Family Court Act § 1046(a)(iii).
5. Whether the finding of abuse as to V.B.G. should be vacated as an apparent scrivener's error.

Disposition

other