NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.Procedural History/Factual Findings On May 18, 2018, ACS filed a petition alleging that respondent Mr. Corey J. (hereinafter “Corey J.,” a person legally responsible, sexually abused and neglected the subject child Nakiah W. (DOB X/XX/2010) and derivatively abused and neglected the children Nyshawn W. (DOB X/XX/2012) and Nahmir J.(DOB X/XX/2015). ACS further alleged that the respondent mother Ms. Latoya N. (“Latoya N.”) abused and neglected Nakiah in that she knew or should have known about the sexual abuse of Nakiah and failed to implement actions to prevent such abuse by continuing to allow Nakiah to be in the presence of Corey J. and for Corey J. to reside in the same home as the family, and as a result she derivatively abused and neglected her two sons. Finally, ACS alleges that the respondent Mr. David W. neglected the subject children by means of perpetrating acts of domestic violence against Latoya N. and by threatening to harm the subject child Nahmir.On the date of filing, Nakiah and Nyshawn were remanded and the child Nahmir was temporarily released to the care of Latoya N. A temporary order of protection was issued in favor of Nakiah and Nyshawn against Corey J., directing him to stay away from the children.On June 29, 2018, Latoya N. requested a hearing pursuant to FCA §1028 for the return of her two older children. After the Court conducted such hearing, Nakiah and Nyshawn were temporarily released to their mother on August 16, 2018.Fact finding on this matter is scheduled to begin on May 29, 2019 and ACS intends to call the subject child Nakiah as a witness.On April 12, 2019, counsel for ACS filed an order to show cause requesting that the Court permit Nakiah to testify at the fact-finding hearing, in camera, outside the physical presence of the respondents, upon the ground that taking her testimony in the presence of the respondents would be detrimental to her well-being. In the alternative, based upon the same grounds, ACS requests the Court to permit Nakiah to testify via closed-circuit television, outside the physical presence of the respondents.By April 30, 2019, the attorney for the subject children Nakiah and Nyshawn, filed papers in support of ACS’s motion, while counsel for the respondent Corey J. filed papers in opposition to the motion requesting that it be denied or that a hearing be held to determine what specific trauma, if any, would result from in-court testimony.1Legal Analysis:It is firmly established that every litigant has a fundamental right, guaranteed by the Due Process Clauses of both the Federal and State constitutions, to be physically present at trial and to confront his or her accuser. See Matter of Cecilia R., 36 NY2d 317, 320 (Ct. of Appeals, 1975). This entitlement to due process of the law extends to respondents in Article 10 proceedings. See Fam. Ct. Act §1011; In re Hanson, 51 AD2d 696 (1st Dept. 1976).Along the same vein, recognizing the existence of such fundamental rights, the Supreme Court of the United States has held that “due process varies with the subject matter and necessities of the situation.” Moyer v. Peabody, 212 U.S. 78 (1989). In civil and child protective cases, the due process right to be present at every stage of a trial, and to particularly have “face-to-face confrontation” is not an absolute. Matter of Justin CC., 77 AD3d 207 at 210 (3d Dept. 2010)(citing Matter of Lindsey BB., 70 AD3d 1205, 1207 (3d. Dept. 2010)); Matter of Donna K., 132 AD2d 87 (4th Dept. 1987); Matter of Robert U., 283 AD2d 689, 690 (3d Dept. 1998); Matter of Kristina R., 21 AD3d 560 (2d Dept. 2005); Matter of Raymond Dean L., 109 AD2d 87 (4th Dept. 1985).In Family Court matters, it is well established that a court has broad discretion to exercise its statutory responsibility to protect a child, including the imposition of testimonial safeguards such as exclusion of a respondent during a child’s testimony. See generally, Matter of Donna K., 132 AD2d 1004, 1005 (4th Dept. 1987). The purpose of “excluding a respondent during the testimony of a child victim in a Family Court Act Article 10 proceeding is to ensure the child’s ability to testify accurately and without inhibition, thus fostering open and truthful testimony.” Matter of Justin CC., 77 AD3d at 808-809 (citing Matter of Q-L. H., 27 AD3d 738, 739 (2d Dept. 2006)). The Appellate Courts have upheld a Family Court’s determination to permit a child to testify outside the physical presence of a respondent where the court has “properly balanced the respective rights of the parties and, based upon the record, reasonably concluded that the child would suffer emotional trauma if compelled to testify” in the presence of a respondent parent, and have ruled that the child’s testimony by live closed circuit television does not violate the respondent’s “due process right nor his Sixth Amendment right of confrontation ” Matter of Q-L. H., 27 AD3d at 739, citing Matter of Sylvia J., 23 AD3d 560, 561-562 (2d Dept. 2005); Matter of Christa H., 267 AD2d 586, 587 (2d Dept. 1999); Matter of Randy A., 248 AD2d 838 (2d Dept. 1998).While the right to face-to-face confrontation is not absolute in civil proceedings, it may not be lightly abridged. See Matter of Lindsey BB., 70 AD3d 1205, 1207-08 (3d. Dept. 2010); In re Robert U., 283 AD2d 689, 690-91 (3d. Dept. 2001). In deciding whether to permit a child to testify outside the presence of a respondent, there is never a presumption of necessity; rather, the moving party must show specific evidence that the child would, in fact, be at risk of serious emotional harm if forced to testify in open court. See Matter of Kyanna T., 19 Misc 3d 1114(A)(Fam. Ct. Kings Co.2007)(citing People v. Henderson, 156 AD2d 92 (2d Dept. 1990)); see also, Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157 (1990). It is not enough that the witness would merely be nervous or suffer some trauma from having to testifying in general, but rather that testifying in the same room as the respondent would likely cause the harm. Maryland v. Craig at 838; see also, Matter of Kyanna T. at 7.; Matter of S. Children, 102 Misc 2d 1015 (Fam. Ct. Kings Co. 1980). To satisfy its burden of proof, a movant must present the testimony or an affidavit of a qualified expert establishing a risk of trauma to the particular child or that the child will not be able to freely testify if the respondent is present. Giannis F., 95 AD3d 618, 618-19, 944 N.Y.S.2d 534 (1st Dept. 2012); Moona C., 107 AD3d 466, 967 N.Y.S.2d 54 (1st Dept. 2013). Notably, there is no specific formula for what or how much information must be provided to the court making this determination. Nor is there any requirement that the information or affidavit come from a doctor, as opposed to a social worker or other treatment provider, and the court need not hold an evidentiary hearing on the motion if the moving papers provide the court sufficient information upon which to base the decision. Giannis F. at 618-619 (affidavit of social worker sufficient); Moona C. at 467 (same). Overall, caselaw is clear that in order for a court to conduct a proper balancing test, it must be supplied with information or an affidavit directly from a qualifying expert about the specific harms or risks a child would face from testifying.Although this Court has a paramount interest in protecting Nakiah from an experience that may possibly trigger fearfulness, anxiety or nervousness, generic concerns or predictions, absent evidence of specific emotional harm, do not outweigh an accused’s right to confrontation at trial. See Matter of S. Children, 102 Misc 2d at 1018-19. In this matter, the Court finds that Petitioner’s moving papers, as well as those of the Attorney for the Child, have not put forward an adequate factual basis to warrant in camera testimony or testimony by closed-circuit television absent an evidentiary hearing. While reference was made to the existence of a therapist at Puerto Rican Family Institute that Nakiah has been seeing for months, neither Petitioner nor the Attorney for the Child submitted in support of the application an affidavit from that therapist, a social worker, or any other qualified expert.In order to properly balance the risk of actual emotional trauma to the child against the respondents’ right to due process, this Court is constrained to hold an evidentiary hearing to permit Petitioner the opportunity to prove by competent evidence whether the testimony of Nakiah via closed-circuit television is warranted.WHEREFORE, Petitioner’s motion is granted to the extent that the Court will hold a vulnerability hearing to determine whether modification to the traditional in-court face-to-face confrontation of a witness is necessary to balance any risks of harm to the child against the due process rights of the respondents.The matter is hereby adjourned to the next scheduled date of May 29, 2019 for a vulnerability hearing.2 Notify parties.Dated: May 8, 2019Bronx, New York
