                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 30, 2015                    518502
________________________________

In the Matter of ALERIA KK.
   and Others, Alleged to be
   Abused and/or Neglected
   and/or Severely Abused
   Children.
                                            MEMORANDUM AND ORDER
ALBANY COUNTY DEPARTMENT FOR
   CHILDREN, YOUTH AND
   FAMILIES,
                    Respondent;

RALPH MM.,
                    Appellant.
________________________________


Calendar Date:   March 27, 2015

Before:   Garry, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


     Mitch Kessler, Cohoes, for appellant.

      Carly M. Mousseau, Albany County Department of Children,
Youth and Families, Albany, for respondent.

     Carol R. Stiglmeier, Albany, attorney for the children.

                             __________


Clark, J.

      Appeal from an order of the Family Court of Albany County
(Walsh, J.), entered January 6, 2014, which, among other things,
granted petitioner's application, in a proceeding pursuant to
Family Ct Act article 10, to adjudicate the subject children to
be, among other things, abused, severely abused and/or and
neglected.
                               -2-                518502

      Respondent is the biological father of two sons and a
daughter, Ralph LL. (born in 2002), Ray LL. (born in 2006) and
Antoinette LL. (born in 2011), and the stepfather of Aleria KK.
(born in 1997). In May 2012, Ralph disclosed to his foster
mother that respondent had sexually abused him and his siblings
on multiple occasions.1 In subsequent interviews, Aleria and Ray
likewise disclosed sexual abuse by respondent, as well as
incidents of excessive corporal punishment. Thus, in August
2012, petitioner commenced this proceeding pursuant to Family Ct
Act article 10 alleging that respondent had abused and/or
neglected the subject children. With leave of Family Court,
petitioner thereafter modified the petition so as to seek
findings of severe abuse against respondent.

      A lengthy fact-finding hearing ensued, during the course of
which Aleria provided sworn in-court testimony outside the
presence of respondent, but with all counsel present and afforded
a full opportunity to cross-examine her. Following the hearing,
Family Court found that respondent abused Aleria, abused and
neglected Ralph and Ray and severely abused Ralph. The court
also made derivative findings of abuse, neglect and severe abuse
regarding Antoinette and of severe abuse with respect to Ray.
Respondent now appeals and we affirm.

      We consider first respondent's argument that the proof was
not sufficient to establish the multitude of findings against
him. Specifically, respondent contends that Family Court's
findings lack a sound and substantial basis in the record
inasmuch as the proof adduced at trial demonstrated that he was
incarcerated during the time when he was alleged to have sexually
abused Aleria. He further contends that Ralph and Ray failed to
adequately particularize the time periods in which the alleged
acts of neglect and abuse against them took place.

      Although Aleria was unable to recall with specificity the
dates when respondent sexually abused her, she consistently
described horrific acts of sexual abuse occurring years earlier


     1
        The reason why the children were in foster homes is not
apparent from the record before us.
                              -3-                518502

and, in a written statement, was able to set forth a variety of
contextual details that served to provide a general time period
of abuse. Specifically, Aleria stated that respondent subjected
her to acts of sexual abuse when Ralph was about three or four
years old, her mother was pregnant with Ray and the family lived
in the City of Schenectady, Schenectady County. She further
stated that the abuse only stopped when respondent went to
prison. Evidence at the hearing revealed that respondent was
incarcerated in April 2004 and was released on either bail or
parole from July 2004 through May 2005, January through August
2008, and May 2009 through May 2011. Notably, one of the
aforementioned time periods corresponds to the time when Ralph
would have been about three years old and Aleria's mother would
have been pregnant with Ray, both of which were before respondent
went to prison for 2½ years and while the family lived in
Schenectady.

      Moreover, there is no question that evidence of the exact
dates that the abuse and/or neglect occurred is not required in
order for petitioner to sustain its applicable burdens of proof
in Family Ct Act article 10 proceedings (see Family Ct Act § 1046
[b] [i], [ii]). Rather, a child's ability to recall details –
including, among other things, dates and times – goes to the
credibility and weight given to the child's disclosures. In this
regard, "Family Court's findings are entitled to great deference
especially where the critical evidence is testimonial, in light
of the court's ability to assess the witnesses' credibility, and
should generally not be disturbed absent a conclusion that they
lack a sound and substantial basis in the record" (Matter of
Brandi U. v Jeffrey V., 47 AD3d 1103, 1104 [2008] [internal
quotation marks and citations omitted]; accord Matter of
Nathaniel TT., 265 AD2d 611, 614 [1999], lv denied 94 NY2d 757
[1999]; see Matter of Justin CC. [Tina CC.], 77 AD3d 1056, 1058
[2010], lv denied 16 NY3d 702 [2011]). The record before us
contains corroborated allegations of horrendous, repeated acts of
sexual and physical abuse perpetrated by respondent against his
children and stepdaughter and, thus, we see no reason to depart
from Family Court's finding that the allegations of severe abuse,
abuse, neglect and derivative abuse and neglect were sufficiently
proven.
                              -4-                  518502

      Nor do we find that Family Court abused its discretion when
it excluded respondent from the courtroom during Aleria's
testimony. Although respondent is entitled to due process, he
does not have an absolute right to be present at all stages of
this civil proceeding (see Matter of Justin CC. [Tina CC.], 77
AD3d 207, 210 [2010]; Matter of Lindsey BB. [Ruth BB.], 70 AD3d
1205, 1207 [2010]; Matter of Robert U., 283 AD2d 689, 690-691
[2001]). "As such, in the context of a Family Ct Act article 10
proceeding, this Court has concluded that, '[i]n balancing the
due process right of the accused with the mental and emotional
well-being of the child, a court may . . . exclude the respondent
during the child's testimony but allow his [or her] attorney to
be present and question the child'" (Matter of Justin CC. [Tina
CC.] 77 AD3d at 210, quoting Matter of Christa H., 267 AD2d 586,
587 [1999]). Accordingly, after having properly balanced
respondent's interests with the impact of his presence in the
courtroom on Aleria's emotional state and well-being, Family
Court's decision to permit her to testify outside of respondent's
presence was an appropriate exercise of discretion.

      Finally, to the extent it is preserved, respondent's
remaining contention is without merit.

     Garry, J.P., Egan Jr. and Lynch, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
