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.
Matter of Justin CC. , 77 AD3d 207 at 210 (3d Dept. 2010) (citingMatter 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.
); In re Robert "U", 283 A.D.2d 689, 690, 724 N.Y.S.2d 527, 529 (2001) ("It is now well settled that a litigant does not have an absolute right to be present at all stages of a civil proceeding[.]"); Nussbaum, 162 Misc.2d at 525, 618 N.Y.S.2d at 169 ("The defendant's right to be present at a civil trial is not absolute."); Matter of Donna K., 132 A.D.2d 1004, 1004, 518 N.Y.S.2d 289, 290 (N.Y.A.D.1987) ("While every litigant has a fundamental right, guaranteed by the due process clause of both the Federal and State Constitutions, to be present at every stage of the trial . . . this right is not absolute in civil actions[.]"); Air Products Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114, 1128 (1982) ("While we recognize that the right of a litigant to be present at the time his case is heard is a cherished right . . . we also are aware that the right is not absolute."); Casson v. Horton, 226 Md. 575, 174 A.2d 581, 582 (1961) (holding that a civil litigant "had no absolute right to be present.").
In short, if unfit to assist with trial conduct, a civil litigant, when excluded from the proceedings, suffers no legally cognizable detriment.I would so hold today. Maloney v. Shoparama Inv. Associates, 144 A.D.2d 112, 534 N.Y.S.2d 451, 452 (1988); Matter of Donna K., 132 A.D.2d 1004, 518 N.Y.S.2d 289, 290 (1987). The question of a party's right to be present in the courtroom during a civil trial was not dispositive in Clark v. Continental Tank Co., Okla., 744 P.2d 949, 953 (1987).
compelled to testify in open court, the court stated that it had considered various factors, including: the stepdaughter's age; the serious nature of the allegations; the fact that the stepdaughter had previously testified in camera at the stepfather's criminal trial; the undisputed fact that the stepdaughter was seeing a therapist; the fact that the stepfather did not controvert the point that it would be in the stepdaughter's psychological best interest to have her testimony conducted in camera; and the fact that the stepfather's interests would be safeguarded by his counsel's presence and ability to cross-examine the stepdaughter ( see generally Matter of Ian H., 42 A.D.3d 701, 703, 840 N.Y.S.2d 202, lv. denied9 N.Y.3d 814, 848 N.Y.S.2d 25, 878 N.E.2d 609). Under the circumstances, the court properly balanced the respective interests of the parties and reasonably concluded that the stepdaughter would suffer emotional trauma if compelled to testify in the stepfather's presence ( see Matter of Donna K., 132 A.D.2d 1004, 1004–1005, 518 N.Y.S.2d 289; see generally Matter of Alesha P. [Audrey B.-Michael B.], 110 A.D.3d 1461, 1461, 973 N.Y.S.2d 508; Matter of Lynelle W., 177 A.D.2d 1008, 1009, 578 N.Y.S.2d 313; cf. Matter of Robert U., 283 A.D.2d 689, 690–691, 724 N.Y.S.2d 527). Moreover, inasmuch as “[the stepfather's] counsel was permitted to be present while the child testified and ... was also given the right to cross-examine her,” the stepfather's constitutional rights were not violated by his exclusion from the courtroom (Donna K., 132 A.D.2d at 1005, 518 N.Y.S.2d 289; see Matter of Kyanna T. [Winston R.], 99 A.D.3d 1011, 1014, 953 N.Y.S.2d 121, lv. denied20 N.Y.3d 856, 959 N.Y.S.2d 691, 983 N.E.2d 770). Contrary to the stepfather's further contention, the court's finding of sexual abuse is supported by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i] ). “ ‘A child's out-of-court statements may form the basis for a finding of [abuse] as long as they are sufficiently corroborated by [any] other evidence tendi
The appellant's further contention that the Family Court erred in excluding him from the courtroom during the testimony of Judith C.Z. is without merit. The Family Court reasonably concluded that Judith C.Z. would suffer emotional trauma if compelled to testify in front of the appellant ( see Matter of Elisha M.W. [ Ronald W.], 96 A.D.3d 863, 864, 946 N.Y.S.2d 481;Matter of Deshawn D.O. [ Maria T.O.], 81 A.D.3d 961, 962, 917 N.Y.S.2d 874;Matter of Q.-L.H., 27 A.D.3d 738, 739, 815 N.Y.S.2d 601;Matter of Lynelle W., 177 A.D.2d 1008, 578 N.Y.S.2d 313;Matter of Donna K., 132 A.D.2d 1004, 1004–1005, 518 N.Y.S.2d 289), and, after properly weighing the respective rights and interests of the parties, thereafter providently exercised its discretion in permitting her to testify via a two-way closed-circuit television set-up. “Because the appellant's attorney was present during the child's testimony and cross-examined her on the appellant's behalf, neither the appellant's due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child's testimony” (Matter of Q.-L. H., 27 A.D.3d at 739, 815 N.Y.S.2d 601;see Matter of Deshawn D.O. [ Maria T.O.], 81 A.D.3d at 962, 917 N.Y.S.2d 874;Matter of Sylvia J., 23 A.D.3d at 561–562, 804 N.Y.S.2d 783;Matter of Heather S., 19 A.D.3d 606, 609, 797 N.Y.S.2d 136).
The Family Court must balance the due process rights of an article 10 respondent with the mental and emotional well being of the child. The Family Court properly balanced the respective interests of the parties and, based upon the record, reasonably concluded that the child Y.-L.R. would suffer emotional trauma if compelled to testify in front of the appellant ( see Matter of Lynelle W., 177 AD2d 1008; Matter of Donna K., 132 AD2d 1004). Because the appellant's attorney was present during the child's testimony and cross-examined her on the appellant's behalf, neither the appellant's due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child's testimony ( see Matter of Sylvia J., 23 AD3d 560; Matter of Heather S., 19 AD3d 606, 609; Matter of Christa H., supra; Matter of Randy A., supra).
Respondent's counsel further asserted that, without such assistance from his client, there was a greater risk that in cross-examining the witness he might inadvertently elicit additional unfavorable information. It is now well settled that a litigant does not have an absolute right to be present at all stages of a civil proceeding, such as a Family Court Act article 10 proceeding (see, Matter of Christa H. [Louis K.], 267 A.D.2d 586; Matter of Donna K., 132 A.D.2d 1004; see generally,Matter of Christina F. [Gary F.], 74 N.Y.2d 532). Notably, however, inMatter of Christina F. (Gary F.) (supra), while counsel were present, the parents were excluded by agreement of the parties during the examination of the five-year-old child. Moreover, while counsel were present in bothMatter of Donna K. (supra) and Matter of Christa H. (Louis K.) (supra), both opinions refer to the trial court "balancing" the due process right of the respondents against the mental and emotional well-being of the child witnesses.
The transcript discloses that, after conferring with counsel, respondent voluntarily agreed to leave the courtroom in order to encourage Regina to testify after petitioner had rested. Under the circumstances, we find that he waived his right to be present during her testimony ( see generally, Matter of Christina F., 135 Misc.2d 495, 496, affd 147 A.D.2d 942, affd 74 N.Y.2d 532; cf., Matter of Daniel Aaron D., 49 N.Y.2d 788, 790). Furthermore, inasmuch as respondent's attorney was present during Regina's testimony and questioned her on respondent's behalf, we do not find that respondent's due process rights were violated ( see, Matter of Falon P., 250 A.D.2d 497; Matter of Heather J., 244 A.D.2d 762, 763). Nor do we find the consent given by respondent's attorney to respondent's absence from the courtroom during Regina's testimony a basis for concluding that he was denied the effective assistance of counsel ( see, Matter of Matthew C., 227 A.D.2d 679, 682-683; Matter of Donna K, 132 A.D.2d 1004, 1005). Therefore, we find no reason to disturb Family Court's order.
The courts finding that respondent had sexually abused his daughter was supported by a preponderance of the evidence, primarily the credited testimony of the infant victim ( Matter of Johnny 0., 240 A.D.2d 179). Moreover, the childs testimony was corroborated to a substantial degree by the testimony elicited during respondents case. Before the child was "sworn" as a witness, the court sufficiently ascertained that the 6-year-old was capable of distinguishing between the truth and lies. The courts exclusion of respondent from the courtroom during his daughters testimony was appropriate under the circumstances since it was necessary to safeguard the childs well-being and did not function to deprive respondent of due process of law ( Matter of Donna K, 132 A.D.2d 1004). Respondents counsel, who was present during the childs testimony, was allowed to consult with respondent before conducting his cross-examination ( see, supra). We have considered respondents remaining contentions and find them to be without merit.