Matter of Joyesha J. v. Oscar S.

135 A.D.3d 557, 22 N.Y.S.3d 845

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 2016
• Docket: 5634
• Status: Published

Opinion

Order, Family Court, New York County (Marva A. Burnett, Ref.), 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 Ct 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 AD3d 645, 646 [2d Dept 2006]; see also Family Ct 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 AD3d 446 [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 Dorene L. v Dhaneswar R., 29 Misc 3d 462, 464-465 [Fam Ct, Bronx County 2010], affd 89 AD3d 428 [1st Dept 2011]). Concur — Mazzarelli, J.P., Acosta, Andrias and Moskowitz, JJ.

Motion to strike portion of brief that sets forth matters dehors the record granted.