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In re R.T.

Family Court, Bronx County

May 4, 2017

In the Matter of R.T.,
v.
Maria O. and DAVID T., Respondents.

          For the Administration for Children's Services: Janette Vincenzi, Esq. Bronx Family Court Legal Services NYC Administration for Children's Services

          For the Respondent Father: Harold Meyerson, Esq.

          For the Respondent Mother: Debbie Jonas, Esq. Family Defense Practice The Bronx Defenders

          For the Subject Child: Candice Whatley, Esq. Legal Aid Society - Juvenile Rights Practice

          For the Witness, Monica T.: Linda McCarthy, Esq.

          Robert Hettleman, J.

         This decision memorializes the oral decision I made on the record in court on February 27, 2017. For the reasons I gave on the record and the reasons below, the motion to have Monica T., now 21 years old, testify via closed circuit television and outside the presence of the respondent, is granted.

         PROCEDURAL POSTURE

         The Administration for Children's Services filed the instant petition on December 9, 2015, alleging that the respondent, David T., [1] sexually abused his now-21 year old daughter, Monica T., when she was under the age of eighteen. Because Monica was no longer a minor under the law when the case was filed, she is not a subject child in the petition. But ACS alleges that the sexual abuse of Monica amounts to derivative abuse of the subject child, R. T., who is now 12 years old. On December 10, 2015, I appointed counsel to represent Monica because (1) she was identified as the key witness in the case and thus an interested party; (2) it was immediately clear to me, from speaking to Monica and hearing about her from the parties, that Monica suffered from a significant cognitive delay and would benefit from legal advice; and (3) Monica consented to having an attorney appointed for her.

         Mr. T. first appeared in court on January 4, 2016, and I appointed counsel to represent him. After January 4, however, he failed to appear in court for all conferences and pretrial matters, and eventually I ordered the trial to begin on September 12, 2016. During the pretrial proceedings, ACS declared that they intended to call Monica as witness, and Monica and her attorney indicated that she was prepared to testify. On September 12, 2016, Mr. T. appeared in court for the first time since January 4. ACS and Monica's attorney both stated that while Monica had been prepared to testify in the absence of her father, she was made severely uncomfortable by his appearance in court and did not wish to testify at that time. I adjourned the trial in order to permit discovery and motion practice relating to numerous issues in the case, and Monica's attorney later filed this motion seeking testimony via closed-circuit television ("CCTV"), outside of the presence of her father.

         II. THE MOTION FOR CCTV

         The motion by Monica's attorney argues that (1) forcing Monica to testify in the same room as her father would have a detrimental effect on her and possibly cause her significant psychological trauma; (2) Monica is cognitively impaired, and this impairment increases her vulnerability as a witness; and (3) Monica is extremely hesitant to speak about the abuse at all, and thus testifying in the room with her father would impede her ability to testify openly and truthfully. Notably, the motion did not seek to exclude Mr. T. from the courtroom or for in camera testimony, but rather to have Monica testify via CCTV. In this way, Monica would be visible and audible to the Court and counsel throughout her testimony, and she would be subject to contemporaneous cross-examination.

         In support of the motion, Monica's attorney submitted two attachments. The first is an "affidavit, " dated February 26, 2016, and signed by psychologist named Dr. Judith Weber. The affidavit indicates that Dr. Weber examined Monica that day in the context of a "guardianship interview." Dr. Weber appears to have reviewed cognitive and psychological assessments in order to determine if Monica could make her own decisions about health care matters. No other context is provided for the notes within that affidavit, but Dr. Weber concluded that Monica was not fit to make those decisions. The second affidavit is from Ann Sydor, a Licensed Clinical Social Worker and an experienced forensic social worker who has worked with the court system on many occasions. Ms. Sydor was retained by Monica's attorney specifically for the purpose of evaluating Monica for this application for CCTV. Ms. Sydor interviewed Monica in person and on the telephone, and she described that Monica has great difficulty discussing the alleged sexual abuse by her father, possesses very limited coping skills, and has fears of retaliation if she were to testify, as she has been warned not to testify by members of both sides of the family. Monica worried that if she were to testify, her family might get mad at her or disown her. Moreover, Monica specifically described that her father has threatened Monica's mother, and that Monica fears that Mr. T. will hurt Monica, her mother, or her sister if she were to testify. Finally, Monica stated that her father's demeanor and presence in the room would be frightening to her. Based upon all of this information, Ms. Sydor opined that (1) Monica should not be forced to testify at all; (2) if Monica is required to testify, being in the same room as her father will heighten her distress as well as cause her fear and anxiety; and (3) if Monica has to testify in the same room as her abuser, the "potential for irreparable psychological damage exists."

         ACS, the attorney for the subject child R., and the mother's attorney all supported the application for CCTV. Mr. T. and his attorney opposed the ...


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