In re Kim K.

Counsel for the Department of Social Services had previously informed the court that he intended to offer into evidence prior out-of-court statements that the child Kim had made to caseworkers and others. Counsel for the respondent grandmother, Helen B., who is Kim’s legal guardian, objected on the ground that Kim is sufficiently mature and intelligent to give testimony and be cross-examined. If only her out-of-court statements are received (Family Ct Act § 1046 [a] [vi]), he would want to call Kim as respondent’s witness. The Law Guardian asserted that Kim should not be required to testify because of her fragile emotional condition which is directly attributable to the circumstances surrounding this case and, on that basis, the Law Guardian made the present motion.^[1] At the hearing held on the motion two witnesses were called by the Law Guardian, Dr. Nancy Schulman, a licensed psychologist, and Ms. Gaye Altman, a certified social worker, both of whom worked with Kim during her current residence at St. Christopher’s — Jennie Clarkson Child Care Center. Also, various reports made by Dr. Schulman were received in evidence and were deemed by the court to be part of her direct testimony subject to cross-examination. The essence of the evidence is that Kim is an emotionally fragile child who does not cope well with stress. While she does not want to live with her grandmother, Kim does not want to do anything or say anything to hurt her and for this reason Kim refuses to come to court to testify. Also, Kim feels that if she did testify it would not matter, that no one would listen and she would be returned to her grandmother. Both witnesses testified that whenever they attempted to discuss the subjects of Kim’s testifying or returning to her grandmother for more than a weekend or holiday visit Kim became visibly upset and exhibited emotional outbursts and b 'came very withdrawn. Indeed, she even became upset when her Law Guardian went to visit with her at Jennie Clarkson because she knew that he wanted to discuss this case and her testifying. Ms. Altman testified that Kim harbors feelings of guilt due to her inability to hold her family together and that there is a significant possibility

While Matter of Christina F. (supra) held that in a proper case the child’s in camera testimony can corroborate the prior out-of-court statements, the court’s conclusion was set against the child’s having been subjected to direct examination (presumably by counsel for the presentment agency) and cross examination by the respondent’s attorney, although the testimony was unsworn.^[3] In earlier cases, however, the courts have not acted uniformly on the question of the exclusion of counsel. In Matter of Anne B. ( 131 Misc 2d 478 ) and Matter of Tara H. ( 129 Misc 2d 508 ), the respective courts apparently excluded counsel while the court in Matter of S. Children ( 102 Misc 2d 1015 ), balancing the due process rights of both the respondent and the child, permitted counsel to attend. But those pre-Christina F. cases (supra) do not resolve the question since the then-prevailing view was that the in camera testimony could not corroborate the prior out-of-court statements since it was not "additional” evidence or evidence of a "different type” within the definition of corroboration found in Family Court Act § 1046 (a) (vi) (e.g., Matter of Anne B., supra; Matter of Tara H., supra).

Subsequently, in Matter of Fawn S. ( 123 AD2d 871 , 872), the court wrote: "and we have declared in dictum that the in camera examination of a child is appropriate in an article 10 proceeding (see, Matter of Bernelle P., 59 AD2d 764 , affd 45 NY2d 937 ).” However, a careful reading of Matter of Bernelle P. leads this court to believe that such a brief statement, apparently made in passing, is too broad to constitute stare decisis on the present issue. In Matter of Bernelle P., the

This court, directly addressing the issue, now holds that it may make a finding of neglect based solely on the in camera interview in the absence of respondent and her counsel and without regard to whether the child’s testimony is sworn or unsworn, at least under the procedure to be adopted in this case.^[4] It is clear that a child’s in camera testimony constitutes evidence since in Matter of Christina F. (supra, 74 NY2d, at 537 ), the court stated that such testimony there given was "evidence * * * of a distinctly different quality from the child’s previous statements.” The in camera direct and cross-examination, etc., did not make the child’s testimony evidence —they made it evidence "of a distinctly different quality” from the child’s previous statements (Matter of Christina F., supra, at 537). Family Court Act § 1046 (a) (vi) does not require that a child’s testimony be corroborated, even when given in camera and unsworn (Matter of Vanessa R., 148 AD2d 989 ).^[5] That section only requires that statements made by the child prior to the hearing be corroborated in order to be sufficient for the court to make a finding of neglect or abuse. It follows, then, that in a proper case in camera testimony alone can be sufficient to support a finding of neglect. The nature of that testimony, whether it is under oath or without oath, the child’s demeanor and the particular procedures adopted to protect the rights of the respondent are factors for the Trial Judge to consider in deciding whether the evidence, by itself, is of sufficient weight to do so.^[6]

3. All counsel, by March 28, 1991, shall serve upon each other and deliver to the court a final list of questions for the court to pose to Kim.

4. On April 19, 1991, the court will interview Kim, in camera, with a reporter present. None of the attorneys, except the Law Guardian, will be present. At the interview the court will attempt to secure answers to the questions propounded by counsel. Depending upon all the circumstances at the time of the interview, including Kim’s demeanor, the court will determine whether she is to testify under oath or without being sworn (Family Ct Act § 152 [b]), and, in its discretion, may omit asking certain questions or inquiring into certain subjects or may make other or further inquiry of Kim. The transcript of the in camera interview will not be sealed and copies may be secured by all counsel.^[7] Thereafter, the court will schedule a hearing for such further proceedings as may be appropriate, including motions addressed to Kim’s testimony.