IN RE: FALON P.

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Supreme Court, Appellate Division, First Department, New York.

IN RE: FALON P., A Child Alleged to be Abused. Angel P., Respondent-Appellant, Commissioner of Social Services, Petitioner-Respondent.

Decided: May 21, 1998

Before SULLIVAN, J.P., and ELLERIN, WILLIAMS, MAZZARELLI and ANDRIAS, JJ. Diane Pazar, for Falon P. Dennis Houdek, for Respondent-Appellant. Jay Douglas Dean, for Petitioner-Respondent.

Order of disposition, Family Court, Bronx County (Marjory Fields, J.), entered on or about September 28, 1993, which, upon a fact-finding determination that respondent had sexually abused his daughter, discharged the child to the custody of her non-respondent mother under the supervision of the Child Welfare Administration (“CWA”) and directed that the father would have CWA-supervised visits with the child, unanimously affirmed, without costs.

 The court's finding that respondent had sexually abused his daughter was supported by a preponderance of the evidence, primarily the credited testimony of the infant victim (In re Johnny O., 240 A.D.2d 179, 658 N.Y.S.2d 871).   Moreover, the child's testimony was corroborated to a substantial degree by the testimony elicited during respondent's case.

 Before the child was “sworn” as a witness, the court sufficiently ascertained that the 6-year-old was capable of distinguishing between the truth and lies.   The court's exclusion of respondent from the courtroom during his daughter's testimony was appropriate under the circumstances since it was necessary to safeguard the child's well-being and did not function to deprive respondent of due process of law (Matter of Donna K., 132 A.D.2d 1004, 518 N.Y.S.2d 289).   Respondent's counsel, who was present during the child's testimony, was allowed to consult with respondent before conducting his cross-examination (see, id.).

We have considered respondent's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.