In the Interest of A.V.

Thomas and Susan were married in 1973 and had a daughter, A.V., in 1984. The couple divorced in 1987. In June 1989, Susan petitioned the court to terminate Thomas’s parental rights over A.V., alleging that Thomas had sexually abused A.V., endangering her well-being. Thomas’s attorney referred Thomas to Dr. Robert Powitzky for an evaluation of Thomas’s personality, with specific regard to the sexual-abuse allegations. Powitzky performed several tests on Thomas, including a penile plethysmography, which measures arousal in response to different stimuli. The penile plethysmography showed the highest measure of arousal to adult females, though it generally demonstrated no significant arousal. Powitzky concluded that Thomas revealed no sexual or psychological pathology. Over Thomas’s objection, the trial judge permitted the testimony of a social worker, John Brogden, who testified that he disagreed with Powitzky’s conclusion that the penile plethysmography test revealed no deviant arousal pattern in response to stimuli, claiming that the low arousal pattern was a common pattern in individuals who had committed incest. Upon questioning, Brogden conceded that an intelligent person could manipulate the results of penile plethysmography but testified that even allowing for possible manipulation, the overall pattern revealed by the test was the most informative element regarding sexual deviancy. No medical evidence was presented at trial attesting to the reliability of penile plethysmography as a test of sexual disorder. Although the trial judge expressed concern over the test’s reliability, she denied Thomas’s motion to strike Brogden’s testimony concerning the penile plethysmography. The judge found that Thomas had endangered A.V.’s physical and emotional well-being and ruled that terminating the parent-child relationship between Thomas and A.V. was in the best interests of the child. Thomas appealed on the grounds that there was no predicate for Brogden’s testimony regarding the penile plethysmography performed by another individual and that the reliability of the test had not been demonstrated. Thomas also argued that there was insufficient evidence to support the termination of his parental rights.