IN RE: YAHNLIS M. and Another Dependent Children Under The Age of Eighteen Years (2008)

Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about August 24, 2005, which, insofar as appealed from, after a fact-finding hearing, determined that respondent-appellant severely abused her daughter Yahnlis M. and derivatively severely abused her daughter Kimberly M. and that both children were neglected, unanimously affirmed, without costs.

Appellant mother was not denied her due process right to present a defense when the court denied her application to retain an expert psychologist to put forth a battered woman syndrome defense.   The admission of such expert testimony rests in the sound discretion of the court (see People v. Cronin, 60 N.Y.2d 430, 433, 470 N.Y.S.2d 110, 458 N.E.2d 351 [1983] ) and, on this record, we find no basis to conclude that the court improvidently exercised its discretion.   There was no foundation laid or direct evidence offered to support such a defense (see People v. Bryant, 278 A.D.2d 7, 717 N.Y.S.2d 136 [2000], lv. denied 96 N.Y.2d 757, 725 N.Y.S.2d 283, 748 N.E.2d 1079 [2001] ).   Rather, the evidence demonstrated that it was the children, and not the mother, who were the subject of repeated beatings and emotional harm by the mother's live-in companion, co-respondent Carmen M., which included the beating of the children's two-year-old brother that resulted in his death.   The evidence also showed that at times the mother inflicted physical abuse upon the children herself (id.), and that her failure to obtain prompt medical attention for her deceased son was driven not by fear of Carmen, but by fear of the blame she would receive as the mother of the child and by fear that her children would be removed from the home.