The Administration for Children's Services (hereinafter, "ACS") moves to have Kyanna T (date of birth, August 30, 1992) testify at a pending fact-finding hearing, in camera, outside the presence of the respondent mother and Mr. R, who is the father of her younger sibling, Jammela R (date of birth, August 5, 1997) and a person legally responsible for her and her brother, Ken T (date of birth, August 30, 1992). ACS affirms that Kyanna is willing to testify at a fact-finding hearing, but requests that the respondents not be in the room during her testimony. ACS asserts that, "forcing the child to testify in front of her mother and step-father would cause Kyanna pain, trauma and irreparable emotional harm." ACS asserts that Kyanna feels "stressed out by what is going on and feels as if her parents blame her for the situation and for separating Mr. R from the family. Additionally, the respondents have had Kyanna removed from their home further adding to the emotional harm the child has endured."

ACS notes that the petition alleges that respondent stepfather got into bed with Kyanna and fondled and sucked on her breasts. Further it alleges that he attempted, on three separate occasions to penetrate Kyanna's vagina with his penis. The respondent mother was allegedly informed of the sexual abuse being perpetrated against Kyanna, but ignored the information and did not intervene to protect her.

In support of their motion, ACS submits a letter from George H. Kowallis, M.D., dated July 11, 2007. In his letter, Dr. Kowallis reports that he conducted an evaluation of Kyanna on April 23, 2007. He states that, in his opinion, the presence of the mother or the stepfather in the courtroom while the child testifies would not be in her best interests. In addition, he states:

My interview and psychological testing tends to suggest that there is a post-traumatic stress disorder developing with the patient also appearing depressed. Also, she is of borderline intelligence this presents additional concerns about her coping abilities. Once again, when this patient testifies in court her biological and stepfather should not be present. Otherwise, she will be emotionally harmed by the experience.

The respondents reply that ACS fails to assert a sufficient basis for excluding them when Kyanna testifies. The respondents note that Kyanna is 15 years old. The respondents also assert that the doctor's letter fails to establish that the child would suffer "emotional trauma" if required to testify in open court.

ACS argues that in order to fulfill its mandate to safeguard Kyanna's physical, mental and emotional well-being, the court must exclude the respondents when Kyanna testifies. Respondent-step-father argues that, in order to provide him with due process of law, this Court must allow him the right of confrontation. In addition to balancing the right of the respondents to due process against the child's need for protection, this court has an additional responsibility of determining a procedure to be followed that will maximize the likelihood that Kyanna will give a full, honest and credible account of what occurred between her and respondent-step-father. For the reasons set forth herein, the Court denies ACS's motion to exclude the respondents during Kyanna's testimony at fact-finding with leave to renew at the conclusion of the hearing that is hereby ordered.

Legal Analysis

The Determination of whether to Exclude Respondents during a Child's Testimony Requires the Court to balance their Due Process Rights against the Mental and Emotional Well-Being of the Child

The court is vested with substantial discretion to devise procedures which protect a vulnerable child witness in a manner which limits the respondents' right to confront the child face-to-face (see e.g., Matter of Heather S., 19 AD3d 606 [2d Dept 2005] [Family Court did not impermissibly deprive respondents of due process or their Sixth Amendment right of confrontation when it allowed the children to testify outside of their presence where respondents' attorneys were present and permitted to cross-examine the children]; Matter of Kim K., 150 Misc 2d 690 [Fam Ct, Bronx 1991] [in determining whether to exclude a respondent from the court room during a child's testimony, the respondent's due process rights and the desire to protect the child's mental and emotional well-being can be accommodated by permitting the attorneys to be present and affording them an opportunity to question the child]; see also Matter of Sylvia J., 23 AD3d 560 [2d Dept 2005]).

In evaluating whether to exclude a respondent from the courtroom during a child's testimony, the court is required to balance the due process rights of the respondent against the mental and emotional well-being of the child (Matter of Q. L.-H., 27 AD3d 738 [2d Dept 2006]; [*3]In re Annemarie R., 37 AD3d 723 [2d Dept 2007]). When very young children are involved, the court's protective powers are particularly broad, since there is a greater risk that testifying in the respondents' presence will undermine the child's ability to testify accurately and without inhibition. The cases in which a child has been permitted to testify in camera without the respondents being present have generally involved very young children (see e.g., Christina F., 74 NY2d 532 [1989] [five years old]; Matter of Nicole V., 71 NY2d 112 [1987] [three and one-half years old]; Matter of Arveh Levi K., 134 AD2d 428 [2d Dept 1987] [five years old]; Matter of Carew, 131 Misc 2d 835 [Fam Ct, Suffolk County 1986] [five years old]; Matter of Tara H., 129 Misc 2d 508 [Fam Ct, Westchester County 1985] [five years old]).

Nevertheless, exclusion may be justified even in the case of a teenaged witness if the movant can establish that the witness's emotional state is so fragile that it cannot withstand confrontation with the accused (Department of Social Services v Phillip C., Nov. 18, 1991,NYLJ p. 33, col. 4 [Fam Ct Ulster County]). For instance, in Matter of Donna K. (l32 AD2d l004 [3d Dept l987]), the Court concluded that a balancing of the respective interests of the parties and the child justified the Family Court's exercise of its responsibility to protect the 16-year-old child by excluding respondent while the child testified where respondent's counsel was permitted to be present while the child testified and was given the opportunity to cross-examine her. Similarly, in Matter of S.K., M.K. and C.K., NYLJ, March 20, 1989, p. 28, col. 4 (Fam Ct, Westchester County), the Family Court permitted the child to testify outside the presence of her parents, after a preliminary hearing at which a psychologist, a qualified expert in child abuse, testified to the special, specific emotional harm likely to befall the 17-year-old if forced to confront the respondents. In that case, the trial court appeared to rely very little upon the child's testimony in arriving at the finding of abuse. In fact, it was clear from the record that a finding of abuse could have been made without the child testifying at all.

Exclusion of a respondent can only be granted where there is specific evidence establishing that the particular child in question is likely to suffer serious mental or emotional harm. Generic or conclusory statements that testifying in the presence of the respondent would be harmful to the child are not sufficient (Matter of S. Children, 102 Misc 2d 1015 [Fam Ct, Kings County 1980]). There is no statutory provision for taking the testimony of the child in camera merely because the child is reluctant to testify in front of him or her. Permitting the child to testify in the respondent's absence, when he or she has done nothing to justify such exclusion, clearly curtails the respondent's due process rights (Id.). Accordingly, in Department of Social Services v Phillip C. (NYLJ, Nov. 18, 1991, p. 33, col. 4 [Fam Ct, Ulster County]), the court refused to exclude the respondent during the testimony of a 14-year-old child finding insufficient evidence that the child would be at risk of harm and that exclusion was necessary to protect the child. The court emphasized that there is no "presumption of harm" to a child who testifies in front of a respondent based on the fact that the child is allegedly the victim of sexual abuse. Likewise, inMatter of G./A. Children (161 Misc 2d 64 [Fam Ct, Kings County, 1994]), the court, noting that the risk to the child must arise from the presence of the respondent, not the trial process in general, refused to take an eight-year-old's testimony in camera. The court emphasized that evidence of the child's age and allegations that she had been abused were insufficient to establish that there would be a potential trauma caused by her having to face her [*4]parents.^[FN1]

When seeking an order excluding the respondent during a child's testimony at fact-finding, the movant has the burden of proving that the child would, in fact, be at risk of serious emotional harm if forced to testify in open court. In order to satisfy its burden of proof, the movant may 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 (but see People v Henderson, 156 AD2d 92, 98 [2d Dept 1990] appeal denied 76 NY2d 736 [1990] [trial court erred by permitting children to testify through use of closed-circuit television where exclusion was based primarily on opinion of social worker who testified that all child witnesses in sexual abuse cases are vulnerable to mental and emotional harm if forced to testify in presence of the alleged perpetrator, since she did not indicate why these two children in particular would suffer such harm]; United States v Moses, 137 F3d 894 [6th Cir 1998] [trial court improperly allowed five-year-old child to testify via closed-circuit television where expert, who testified regarding likelihood of trauma, had worked with abused children but had no special skill or knowledge relating to trauma]).

In weighing the competing interests at stake, the court is bound to consider the views expressed by any qualified expert, as well as the Law Guardian. Nevertheless, those views are not dispositive and can not usurp the judgment of the Family Court (see e.g., Matter of Robert "U.," 283 AD2d 689 [3d Dept 2001] [Family Court erred by excluding respondent from the courtroom during the testimony of his 13-year-old stepdaughter and 15-year-old stepson, where the court engaged in no attempt at balancing the due process rights of the respondent with the mental and emotional well-being of the children, instead abdicating its responsibility to do so to the Law Guardians, who asserted that conversations with the children led them to conclude that they would be traumatized by having to testify in respondent's presence]; see also Griffin v Scott, 303 AD2d 504 [2d Dept 2003] [Family Court was not required to follow the recommendations of the forensic examiner and the Law Guardian]; Neuman v Neuman, 19 AD3d 383 [2d Dept 2005] [recommendations of court-appointed experts are but one factor to be considered and are entitled to some weight, however, they are not determinative and do not [*5]usurp the judgment of the trial judge]).

Excluding the respondent during a fact-finding hearing raises the most significant Confrontation Clause concerns where, as here, the child witness' testimony constitutes both the first detailed airing of the facts, and the core of the petitioner's case. Indeed, since a finding may be based solely on unsworn testimony (Matter of Arveh Levi K., 134 AD2d 428 [2d Dept 1987]), use of the in camera procedure at fact-finding can deprive the respondent of any opportunity to directly challenge the only evidence in the case]; Matter of Leslie C., 224 AD2d 947 [4th Dept 1996] [Family Court erred by excluding respondent and respondent's attorney where the nine-year-old child's testimony was necessary to establish the abuse since it was the only corroboration available of the child's prior out of court statements]).

Courts have, however, been less reluctant to exclude the respondent where there is other available evidence to corroborate the child's out of court statements ^[FN2] (see e.g., Matter of Randy A., 248 AD2d 838, 840 [3d Dept 1998] [trial court's exclusion of respondent during three-year-old child's testimony did not constitute reversible error where the child's out-of-court statements were corroborated by evidence other than the child's in camera testimony]; Matter of S.K., M.K. and C.K., NYLJ, March 20, 1989, p. 28, col. 4 [Fam Ct, Westchester County] [trial court permitted child to testify outside the presence of her parents, after a preliminary hearing at which a psychologist testified to the specific emotional harm likely to befall the 17-year-old if forced to confront the respondent, where a finding of abuse could have been made without the child testifying at all]; Matter of Robert "U.," 283 AD2d 689 [3d Dept 2001] [Family Court's exclusion of respondent from the courtroom during the testimony of his teenaged step-children did not constitute reversible error since a prima facie case of abuse was established without their testimony by the testimony of a clinical social worker and sexual abuse validator corroborating of the children's previous out of court statements]).

In the instant case, Kyanna is 15-years-old and her testimony is the only evidence available to corroborate her prior out of court statements. Consequently, if the instant motion is granted, the Court may enter findings against both respondents without having granted them the opportunity to challenge the only evidence against them.

Under these circumstances, exclusion can only be granted upon specific evidence establishing that Kyanna is likely to suffer serious mental or emotional harm if required to testify in the presence of the respondents. The Court is not permitted to presume that testifying in the presence of the respondents would create a risk of serious harm.

ACS has the burden of proof with respect to this issue and the only evidence that it has [*6]submitted is Dr. Kowallis's unsworn letter. The issue before the Court, therefore, is whether that evidence is sufficient, in and of itself, to establish a risk of serious risk of harm to Kyanna and whether that risk is sufficient to limit respondents' rights to confront the only evidence against them. After weighing the relevant interests at stake, the Court can only conclude that this question must be answered in the negative.

Expert Opinion Evidence based on Out-of-Court Materials of Questionable Reliability is of Little Probative Value

In forming an opinion, an expert witness must generally rely on facts "in the record or personally known to the witness" (Cassano v Hagstrom, 5 NY2d 643 [1959],rearg denied 6 NY2d 882 [1959]). Expert witnesses, however, may also base their opinions upon information provided by other witnesses who are subject to cross-examination (Casiero v Stamer, 308 AD2d 499 [2d Dept 2003]; Erosa v Rinaldi, 270 AD2d 384 [2d Dept 2000]). They may also base their opinions on facts and materials in evidence,^[FN3] real or testimonial, or material not in evidence provided that those materials are "of a kind accepted in the profession as reliable as a basis in forming a professional opinion" and provided that the proponent of the expert opinion evidence establishes the reliability of the out-of-court materials (emphasis provided) (Wagman v Bradshaw, 292 AD2d 84 [2d Dept 2002] [doctor who treated plaintiff should not have been permitted to testify as to written report interpreting test results, where the report was prepared by another healthcare professional who did not testify, the test results were not in evidence, and there was no proof that the out-of-court material was reliable]; Hambsch v New York City Transit Authority, 63 NY2d 723 [1984] [expert's testimony regarding the cause of plaintiff's condition was inadmissible where it was based upon discussions with another medical provider since there was no evidence establishing the reliability of the out-of-court material]; Erosa v Rinaldi, 270 AD2d 384 [2d Dept 2000] [expert's opinion inadmissible where he relied on the reports of doctors not called to testify]).

Furthermore, an expert may not rely on the opinion of another mental health professional if that opinion forms the "principal basis" for the expert's opinion, "not merely a link in the chain of data upon which that witness relied" (Sigue v Chemical Bank, 284 AD2d 246 [1st Dept 2001] [expert's reliance on report of treating doctor not subject to cross-examination was improper because treating doctor's report constituted an expression of opinion on a crucial issue and formed the principal basis for expert witness's opinion, not merely a link in the chain of data on [*7]which the witness relied]). Moreover, an expert is not permitted to simply recite information received from another expert about which he has no personal knowledge, since such material, to the extent it is admissible, is properly presented through percipient witnesses and documentary evidence (LinkCo, Inc. v Fujitsu Ltd., 2002 WL 1585551 [SDNY 2002] [excluding expert opinion evidence based on an examination of documents since the testimony by fact witnesses familiar with those documents would be far more appropriate and would render the expert witness' secondhand knowledge unnecessary];Highland Capital Management, L.P. v Schneider, 379 F Supp2d 461 [SDNY 2005]).

In the instant case, the only evidence submitted by ACS in support of its motion to exclude the respondents during the child's testimony is the letter from Dr. Kowallis. According to Dr. Kowallis "the presence of the stepfather or the biological mother in the courtroom would not be in the patient's best interests" and would result in her being "emotionally harmed" since his interview and psychological testing "tends to suggest that there is a post-traumatic stress disorder developing with the patient also appearing depressed. Also, she is of borderline intelligence this presents additional concerns about her coping abilities."

Dr. Kowallis's letter is an insufficient basis on which to order an exclusion. First, there is no indication that he has any particular experience working with abused children or that he has any special skill or knowledge relating to trauma. Consequently, the Court is unable to determine whether he is qualified by knowledge, skill, experience, education or training to render an opinion about the likely impact upon Kyanna of having to testify in the presence of the respondents (see United States v Moses, 137 F3d 894 [6th Cir 1998] [child protective services social worker did not qualify as an expert for purposes of rendering an opinion to establish the likelihood of child witness's trauma from testifying in open court in the presence of the defendant; although she was an expert in social work, since the record did not establish that the social worker had any "special skill or knowledge" relating to trauma]).

Second, although Dr. Kowallis states that he evaluated the child on one occasion, six months ago, there is no indication of what his evaluation consisted of, how long it took, whether he spoke with any collateral sources or what records he reviewed. Consequently, the Court is unable to determine whether Dr. Kowallis's evaluation was sufficiently comprehensive to render a meaningful opinion about the likely impact upon Kyanna of having to testify in the presence of the respondents. There is nothing in the doctor's letter from which the validity of his ultimate conclusions about Kyanna's emotional well-being can be inferred. Where an expert states his conclusions unencumbered by any facts or data, the opinion should be given no probative force whatever (Romero v Stanley, 90 NY2d 444 [1997]).

Third, Dr. Kowallis's opinion is based in substantial part on the results of psychological and intelligence testing. Psychiatrists do not normally perform these tests; psychologists do. Nevertheless, the doctor failed to specify which tests were administered, who administered them, when they were administered or what the results were. Accordingly, the Court cannot determine the competence of the individual who administered the tests or whether the results were properly determined; nor can the Court determine whether the information on which Dr. Kowallis relied is "of a kind accepted in the profession as reliable as a basis in forming a professional opinion" (see e.g., Jemmott v Lazofsky, 5 AD3d 558, 560 [2d Dept 2004]; Wagman v Bradshaw, 292 AD2d 84, 85-87 [2d Dept 2001]). Because the reliability of the test results was never established, Dr. Kowallis's assertion that Kyanna's precarious emotional condition and her [*8]limited intelligence render her more vulnerable to testifying in open court cannot be accepted for the truth of the matter asserted (Wagman v Bradshaw, 292 AD2d at 89 ["The professional reliability exception does not permit an expert witness to offer opinion testimony based on out-of-court material for the truth of the matter asserted in the out-of-court material"]).

Fourth, Dr. Kowallis's tentative diagnoses of Kyanna, e.g., that she "appears depressed" and that test results "tend to suggest that post-traumatic stress disorder [is] developing" (emphasis provided), do not reflect an acceptable level of certainty and must be excluded as speculation and guesswork (Romario v Stanley, 90 NY2d 296 [1983]; People v Fratello, 92 NY2d 565 [1998]). Where an expert's assertions are speculative and unsupported by an evidentiary foundation, they are entitled to no probative force (Cinquemani v Old Slip Associates, LP, 2007 WL 2783084 [2d Dept]; Buchholz v Trump, 5 NY3d 1 [2005]).

Fifth, his generic predictions about the possibility of harm to the child fails to explain what special, specific emotional harm is likely to befall this particular 15-year-old if required to testify in open court (Matter of S.K., M.K. and C.K., NYLJ, March 20, 1989, p. 28, col. 4 (Fam Ct, Westchester County). Finally, neither ACS in their moving papers nor Dr. Kowallis in his letter, make any effort to distinguish between the respondent-mother and the respondent-step-father in terms of the likely impact upon Kyanna of having to testify in open court. The Court cannot simply assume that the impact would be the same irrespective of whether both respondents are present or only one; nor can the Court assume that the impact would be the same irrespective of whether the respondent mother or respondent step-father were present.

Conclusion

In considering whether to exclude the respondents from the courtroom during Kyanna's testimony, the Court is required to balance the due process rights of the respondents against the mental and emotional well-being of the child. In balancing these interests, the Court must determine whether ACS has satisfied its burden of proving that Kyanna will suffer serious mental or emotional harm if required to testify in open court. Toward that end, the Court must determine whether Dr. Kowallis's letter establishes that Kyanna's well-being will be jeopardized by the presence of the respondent in the court room when she testifies.

In considering this question, the Court is mindful of recent decisions by both the Court of Appeals and the United States Supreme Court finding Confrontation Clause violations where trial courts admitted hearsay statements without ensuring that the accused was afforded the opportunity to cross-examine the declarants (People v Goldstein, 6 NY3d 119 [2005], cert denied, 126 S Ct 2293 [2006]; Crawford v Washington, 541 US 36 [2004]). Although Goldstein, Crawford and their progeny appear to apply exclusively to the right of confrontation in criminal proceedings, the principles articulated therein caution against an expansive interpretation of traditional hearsay exceptions to curtail a litigant's right to confront witnesses in civil proceedings involving important interests, such as the right to continued custody of one's children (In re M/B Children, 8 Misc 3d 1001(A) [Fam Ct, Kings County 2005]).

The interests at stake for both the respondents and Kyanna are considerable. While child protective proceedings are civil, not criminal, in nature and the respondents are not entitled to all the due process rights granted to the accused in Criminal Court, the right of confrontation is such [*9]a fundamental part of due process that it should not be lightly denied.^[FN4]

The Legislature has already altered the rules of evidence in child protective proceedings to allow otherwise inadmissible hearsay to come into evidence.^[FN5] If they had intended to further restrict the respondents due process rights by permitting all children who are alleged victims of abuse to testify outside the presence of the respondents, it would have done so explicitly by statute.

The exceptions to the hearsay rule unique to Family Court already have the effect of depriving the respondent of the right to confront and cross-examine all the witnesses against him. As at least one other court has held, "Only so many poles may be pulled out from under the protective tent of due process before it collapses; if we take one out, we should verify that the remaining ones can adequately support the weight of due process or else secure a substitute pole to help carry the load." (Depart. of Social Services v Phillip C., Nov. 18, 1991, NYLJ, p. 33, col. 4 [Fam Ct, Ulster County]). As that court noted, merely pointing out that the proceeding is not criminal and the respondent will not be incarcerated if a finding is entered, underestimates the devastating effect of the finding of sex abuse against a parent in Family Court. There are few worse nightmares imaginable to a parent than to be falsely accused and found to have committed acts constituting child sexual abuse. The respondents' fitness as parents has been placed under intense scrutiny. If found to have abused the subject child the parents' standing in the family and in the community will be eroded. Their rights to visitation and custody will be affected. In addition, findings of child abuse could ultimately serve as a predicate to terminate their parental right especially if the parents, who have been found to have committed acts of abuse, subsequently fail to admit in counseling that they committed those acts [*10](Matter of Travis Lee G., 169 AD2d 769 [2d Dept 1991]; In re Amy B., 37 AD3d 600 [2d Dept 2007], lv den 830 NYS2d 294 [2007]).

Balanced against the respondents' rights, however, the Court is required to consider Kyanna's mental and emotional well-being. The Court cannot dismiss lightly the prospect of a child witness suffering serious emotional injury as a result of testifying in front of her alleged abusers. The "Family Court is not in the business of destroying children in order to save them" (Depart. of Social Services v Phillip C., NYLJ, Nov. 18, 1991, p. 33, col. 4 [Fam Ct, Ulster County]). Moreover, the Court must consider the possibility that a failure of proof could result in the dismissal of this child protective proceeding, if Kyanna is so intimidated by the respondents exercising their rights to confrontation, that she refuses to testify.

Accordingly, the Court is constrained to order a hearing in order to permit ACS the opportunity to prove by competent evidence its assertions that forcing the child to testify in front of her mother and step-father would cause her pain, trauma and irreparable emotional harm. This matter is adjourned to November 27, 2007, at which time ACS shall be required to proceed.

Accordingly, it is hereby

ORDERED, that the motion is denied without prejudice; and it is further

ORDERED, that a hearing on the issues raised herein shall be conducted before the Court on November 27, 2007 at 2:30 PM.

DATED:E N T E R:

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EMILY OLSHANSKY, J.F.C.