Opinion
01-19-2016
In re JOYESHA J., Petitioner–Appellant, v. OSCAR S. Respondent–Respondent.
George E. Reed, Jr., White Plains, for appellant. Law Offices of Susan Barrie, New York (Susan Barrie of counsel), for respondent. Leslie S. Lowenstein, Woodmere, attorney for the children.
George E. Reed, Jr., White Plains, for appellant.
Law Offices of Susan Barrie, New York (Susan Barrie of counsel), for respondent.
Leslie S. Lowenstein, Woodmere, attorney for the children.
Order, Family Court, New York County (Marva A. Burnett, Referee), entered on or about April 30, 2014, which, after a fact-finding hearing, dismissed the petition seeking an order of protection on behalf of petitioner and her children against respondent father, unanimously affirmed, without costs.
The Referee properly determined that petitioner did not establish a family offense by a fair preponderance of the evidence (Family Court Act § 832 ). Petitioner's allegations that the father improperly touched one or more of the children were unsupported by admissible evidence, but only by inadmissible hearsay testimony by petitioner and her mother (see Matter of Imani B., 27 A.D.3d 645, 646, 811 N.Y.S.2d 447 [2d Dept.2006] ; see also Family Court Act § 834 ). There is no basis to disturb the Referee's determination that their testimony, and the testimony of the children's maternal great aunt concerning an incident that she observed four years earlier, was not credible (see e.g. Matter of Sarah McL. v. Clarence L., 111 A.D.3d 446, 974 N.Y.S.2d 778 [1st Dept.2013] ).
The Referee providently determined that it would not consider statements made by the children during in camera interviews, at which the parties and their counsel were not present, in this article 8 proceeding, because the parties' due process rights would be compromised (see Matter of Dorene L. v. Dhaneswar R., 29 Misc.3d 462, 464–465, 906 N.Y.S.2d 871 [Family Ct., Bronx County 2010], affd. 89 A.D.3d 428, 931 N.Y.S.2d 862 [1st Dept.2011] ).
MAZZARELLI, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, JJ., concur.