Opinion
2019–02998 Docket No. N–4277–17
10-04-2019
In the MATTER OF NEVAEH L.-B. (Anonymous). Administration for Children's Services, Respondent; v. Marcus B. (Anonymous), Appellant.
Lauri Gennusa, Jamaica, NY, for Appellant. James E. Johnson, Corporation Counsel, New York, N.Y. (Devin Slack and Carolyn Walther of counsel), for Respondent. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Amy Hausknecht of counsel), attorney for the Child.
Lauri Gennusa, Jamaica, NY, for Appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (Devin Slack and Carolyn Walther of counsel), for Respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Amy Hausknecht of counsel), attorney for the Child.
LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 10, the father appeals from an order of fact-finding of the Family Court, Kings County (Ilana Gruebel, J.), dated February 20, 2019. The order, after a fact-finding hearing, found that the father abused and neglected the subject child.
ORDERED that the order of fact-finding is affirmed, without costs or disbursements.
The petitioner commenced this proceeding pursuant to Family Court Act article 10, alleging, inter alia, that the father sexually abused and neglected the subject child. Following a fact-finding hearing, the Family Court found that the father abused and neglected the child. The father appeals.
We agree with the Family Court's determination to permit the child to testify at the fact-finding hearing via closed-circuit television (see Matter of Michael U. [Marcus U.] , 110 A.D.3d 821, 823, 973 N.Y.S.2d 676 ; Matter of Elisha M.W. [Ronald W.] , 96 A.D.3d 863, 864, 946 N.Y.S.2d 481 ). "The right of a respondent parent ‘to be present at every stage of a Family Court Act article 10 proceeding is not absolute, as such a proceeding is civil in nature’ " (Matter of Elisha M.W. [Ronald W.] , 96 A.D.3d at 864, 946 N.Y.S.2d 481, quoting Matter of Q.-L.H. , 27 A.D.3d 738, 739, 815 N.Y.S.2d 601 ). "The Family Court must balance the respondent parent's due process rights with the mental and emotional well-being of the child" ( Matter of Hannah T.R. [Soya R.] , 149 A.D.3d 958, 959, 53 N.Y.S.3d 645 ). Here, the Family Court properly weighed the respective rights and interests of the father and the child, who expressed fear about seeing the father during her testimony and worried she would not be able to testify if she saw him. We also note that the child was subject to vigorous cross-examination after her direct testimony. Accordingly, the father's contention that his due process rights were violated is without merit. At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing that the child has been abused or neglected by "a preponderance of evidence" ( Family Ct. Act § 1046[b][i] ; see Matter of Joseph L. [Cyanne W.] , 168 A.D.3d 1055, 1056, 93 N.Y.S.3d 113 ). "The Family Court's assessment of credibility of the witnesses is entitled to considerable deference unless clearly unsupported by the record" (Matter of Joseph L. [Cyanne W.] , 168 A.D.3d at 1056, 93 N.Y.S.3d 113 ).
Here, the petitioner established by a preponderance of the evidence that the father abused and neglected the child by putting his hand into her pants while she lay in bed next to him and rubbing her buttocks (see Matter of M.W. [Mohammad W.] , 172 A.D.3d 879, 881, 100 N.Y.S.3d 287 ; Matter of Karen Patricia G. , 44 A.D.3d 658, 660, 843 N.Y.S.2d 360 ).
The father's contentions regarding a forensic mental health examination, raised for the first time on appeal, are not properly before this Court, and his remaining contention is without merit.
AUSTIN, J.P., DUFFY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.