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Precise Dates of Abuse Need Not Be Proven in a Family Court Act Article 10 Proceeding/Exclusion of Respondent from Proceedings During Child’s Testimony Was Proper

The Third Department affirmed the child abuse/severe abuse/neglect findings against respondent and noted that the precise dates of the abuse need not be proven in a Family Court Act Article 10 proceeding.  The Third Department further determined that the exclusion of the respondent during one of the children’s (Aleria’s) testimony, while allowing the respondent’s attorney to be present, was a proper exercise of discretion:

…[E]vidence of the exact dates that the abuse and/or neglect occurred is not required in order for petitioner to sustain its applicable burdens of proof in Family Ct Act article 10 proceedings (see Family Ct Act § 1046 [b] [i], [ii]). Rather, a child’s ability to recall details — including, among other things, dates and times — goes to the credibility and weight given to the child’s disclosures. In this regard, “Family Court’s findings are entitled to great deference especially where the critical evidence is testimonial, in light of the court’s ability to assess the witnesses’ credibility, and should generally not be disturbed absent a conclusion that they lack a sound and substantial basis in the record” … . The record before us contains corroborated allegations of horrendous, repeated acts of sexual and physical abuse perpetrated by respondent against his children and stepdaughter and, thus, we see no reason to depart from Family Court’s finding that the allegations of severe abuse, abuse, neglect and derivative abuse and neglect were sufficiently proven.

Nor do we find that Family Court abused its discretion when it excluded respondent from the courtroom during Aleria’s testimony. Although respondent is entitled to due process, he does not have an absolute right to be present at all stages of this civil proceeding … . “As such, in the context of a Family Ct Act article 10 proceeding, this Court has concluded that, ‘[i]n balancing the due process right of the accused with the mental and emotional well-being of the child, a court may . . . exclude the respondent during the child’s testimony but allow his [or her] attorney to be present and question the child'” … . Accordingly, after having properly balanced respondent’s interests with the impact of his presence in the courtroom on Aleria’s emotional state and well-being, Family Court’s decision to permit her to testify outside of respondent’s presence was an appropriate exercise of discretion. Matter of Aleria KK. (Ralph MM.), 2015 NY Slip Op 03590, 3rd Dept 4-30-15

 

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