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In re Moona C.

Supreme Court of New York, First Department

June 11, 2013

In re Moona C., and Others, Dependent Children Under Eighteen Years of Age, etc.,
v.
Charlotte K., Respondent-Appellant, The Administration for Children's Services, Petitioner-Respondent. and

Carol Lipton, Brooklyn, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the children, Moona C. Amal K. and Nadia K.

Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child Robina C.

Mazzarelli, J.P., Sweeny, Moskowitz, Manzanet-Daniels, Gische, JJ.

Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or about October 26, 2009, which, to the extent it brings up for review the order of fact-finding, entered on or about May 1, 2009, determining, after a hearing, that respondent mother neglected the subject children, unanimously affirmed, without costs. Appeal from the fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the dispositional order.

Respondent's challenge to an interim order suspending her visitation with the children is not before this Court because no appeal was taken from that order and the issue was rendered moot by her consent to entry of a final order of disposition providing for supervised visitation with the children (see Matter of Sandra G. v Victor P., 71 A.D.3d 588 [1st Dept 2010], lv dismissed 15 N.Y.3d 862 [2010]; Family Court Act § 1030). In any event, the determination to suspend visitation had a sound and substantial basis in the record (see Matter of Latisha C. [ Wanda C. ], 101 A.D.3d 1113 [2d Dept 2012]).

The Family Court properly permitted one of the children, Robina C., to testify at the fact-finding hearing in camera. The court properly balanced respondent's due process rights with the emotional well-being of the child by permitting the child to testify outside of respondent's presence but subject to contemporaneous cross-examination by respondent's attorney following consultation with respondent (see Matter of Giannis F. [Vilma C. - Manny M.], 95 A.D.3d 618, 618 [1st Dept 2012]; Matter of Hadja B., 302 A.D.2d 226 [1st Dept 2003]). The affidavit of the social worker submitted in support of the application sufficiently established the potential trauma to the child, which would likely interfere with her ability to testify accurately and without inhibition concerning the allegations of excessive corporal punishment (see id.). While respondent asserts that the social worker lacked sufficient experience or expertise, those factors go to the weight to be accorded the opinion, not its admissibility, and respondent offered no evidence in opposition.


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