IN RE: ANNEMARIE R. (Anonymous). (2007)

In a child protective proceeding pursuant to Family Court Act article 10, the great-uncle and guardian of the child appeals, as limited by his brief, from so much of an order of fact-finding and disposition of the Family Court, Nassau County (Foskey, J.), dated December 20, 2005, as, after a fact-finding and dispositional hearing, found that he abused the child Annemarie R.

ORDERED that the order of fact-finding and disposition is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a new fact-finding hearing in accordance herewith, and, if necessary, for a new disposition thereafter;  and it is further,

ORDERED that pending the hearing, the order of protection dated December 13, 2005, is continued.

 In this proceeding pursuant to Family Court Act article 10, the child's great-uncle, who is the guardian of the child, has been accused of sexually abusing her such that an adjudication of abuse “constitutes a permanent and significant stigma which might indirectly affect the appellant's status in future proceedings” (Matter of Alexis C., 27 A.D.3d 646, 647, 811 N.Y.S.2d 449;  Matter of Sylvia J., 23 A.D.3d 560, 804 N.Y.S.2d 783).   Although the right of a person accused of abuse to be present at every stage of an article 10 proceeding is not absolute, the Family Court must balance his right to confront and cross-examine witnesses against the mental and emotional well being of the child (see Matter of Q.-L.H., 27 A.D.3d 738, 739, 815 N.Y.S.2d 601;  Matter of Christa H., 267 A.D.2d 586, 698 N.Y.S.2d 921;  see also Matter of Christina F., 74 N.Y.2d 532, 535, 549 N.Y.S.2d 643, 548 N.E.2d 1294;  Matter of Heather S., 19 A.D.3d 606, 797 N.Y.S.2d 136;  Matter of Katherine S., 271 A.D.2d 538, 705 N.Y.S.2d 670).

 Here, the Family Court erred in failing to perform a balancing test to weigh the great-uncle's due process rights against the risk to the child of either testifying in open court or in camera with the great-uncle or his counsel present, thereby abdicating its role to the judgment of the Law Guardian (see Matter of Robert U., 283 A.D.2d 689, 690, 724 N.Y.S.2d 527;  Matter of Rockland County Dept. of Social Servs. [Joseph Z.], 186 A.D.2d 136, 588 N.Y.S.2d 191).   Although empowered to do so, we decline to make a finding of abuse on the basis of the record before us, and therefore remit the matter to the Family Court for a new fact-finding hearing, and, if necessary, a new disposition thereafter.