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Decided on October 16, 2007
Family Court, Kings County

XX/07
APPEARANCES: Nicola Gibson, Esq., for the Administration for Children's Services Assistant Corporation Counsel 330 Jay Street 12th Floor Brooklyn, NY 11201 Mathew J. Kazansky, Esq., for Respondent Mother 26 Court St. (Suite No. 2014) Brooklyn, New York 11242 Sandra L. Schpoont, Esq., for Respondent Father Fee Schpoont and Cavallo, LLP 50 Broadway (Suite # 1000) Brooklyn, New York 11201 Patrick Garcia, Esq., Law Guardian for Kyanna T 26 Court St. (Suite # 2606) New York, New York 10004 Joan James, Esq., Law Guardian for Jammela R and Ken T 26 Court St. (Suite # 1710) Brooklyn, New York 11242 Emily M. Olshansky, J.
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.
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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

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