Matter of Joyesha J. v. Oscar S. , 22 N.Y.S.3d 845 ( 2016 )

Matter of Joyesha J. v Oscar S. (2016 NY Slip Op 00278)

Matter of Joyesha J. v Oscar S.

2016 NY Slip Op 00278

Decided on January 19, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 19, 2016
Mazzarelli, J.P., Acosta, Andrias, Moskowitz, JJ.

5634

[*1]16665 & 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.

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 AD3d 645, 646 [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 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 Matter of Doreen L. v Dhaneswar R., 29 Misc. 3d 462, 464-465 [Family Ct, Bronx County 2010], affd 89 AD3d 428 [1st Dept 2011]).

M-5634 - Joyesha J. v Oscar S.

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

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 19, 2016

CLERK