In re Kelly F.

Mikoll, J. P. (dissenting).

We respectfully dissent.

Family Court is vested with considerable discretion in determining whether a child’s statements have been sufficiently corroborated so as to ensure their reliability (see, Matter of Christina R, 74 NY2d 532, 536). Family Court Act § 1046 (a) (vi) allows the child’s prior out-of-court statements relating to abuse or neglect to be introduced in evidence, provided that these hearsay statements are corroborated so as to ensure their reliability (see, Matter of Nicole V, 71 NY2d 112, 117118).

The issue here is whether the corroborative evidence accepted by Family Court sustained the allegations of sexual *231abuse. John Nixon, a psychologist and director of the SUNY Institute for Applied Behavioral Analysis, an evaluator and validator for petitioner, testified that he used the "Yuille” protocol in his examination of Kelly F. Nixon testified that this technique is an analytical process which has wide acceptance and is used in assessing statements of child abuse victims to determine whether the memory of the child can be credited for reliability and truthfulness. It was initiated by John Yuille, an internationally known expert in memory.

Nixon testified at length as to his application of the criteria of the Yuille protocol to validate the child’s memory and he opined, based on a reasonable degree of professional certainty, that Kelly was a sexually abused child. We disagree with the majority’s finding that the expert impermissibly crossed the line in vouching for the child’s truthfulness although, we agree, that the record bears several instances of loose language which might impart such an impression. However, the true import of Nixon’s testimony is to the effect that in utilizing the Yuille method, he first attempted to assess Kelly’s memory and her understanding of truthfulness. He then proceeded to evaluate her statements of abuse per the Yuille protocol by taking into consideration whether the statements were coherent, considering the child’s age and development, whether they were spontaneous reproductions or programmed and whether they contained sufficient detail to indicate an actual versus an imagined event. Nixon also utilized other important validation principles including evaluating the child’s statement in terms of contextual imbedding, ability to deal with complications and, of special import, evaluation of the child’s revelation of child abuse trauma symptoms—sadness, fear and guilt. He noted that his role was to look to the child’s memory and not to attempt to get to the final truth and, in finding her memory intact, he was able to validate her statements.

We would consequently affirm Family Court’s finding.

Mercure and Yesawich Jr., JJ., concur with Crew III, J.; Mikoll, J. P., and Peters, J., dissent in a separate opinion by Mikoll, J. P.

Ordered that the order is reversed, on the law, without costs, and petition dismissed.