Aaron H. v. James G.

• Decision Date: 03 May 2012
• Docket Number: No. O–1186/12.,O–1186/12.
• Citation: 35 Misc.3d 1219,951 N.Y.S.2d 84,2012 N.Y. Slip Op. 50790
• Parties: In the Matter of Family Offense Proceedings under article 8 of the Family Court Act AARON H., Petitioner, v. JAMES G. and Mike G., Respondents.
• Court: New York Family Court

35 Misc.3d 1219

951 N.Y.S.2d 84

2012 N.Y. Slip Op. 50790

In the Matter of Family Offense Proceedings under article 8 of the Family Court Act AARON H., Petitioner,

v.JAMES G. and Mike G., Respondents.

No. O–1186/12.

Family Court, Queens County, New York.

May 3, 2012.

Susan A. Gerner, Brooklyn, for petitioner.

Dominick Gullo, Staten Island, for respondents.

Dean T. Kusakabe, Forest Hills, for Children.

JOHN M. HUNT, J.

The respondents in these separate family offense proceedings which have been consolidated for trial purposes, have both moved for dismissal of the family offense petition upon the ground that the petition fails to state a cause of action under article 8 of the Family Court Act. For the reasons which follow, the Court grants the motion of both respondents and the petitions are dismissed.

By petitions filed pursuant to Family Court Act § 821 on January 10, 2012, Aaron H. alleges that the respondents, James G. and Mike G ., have committed one or more family offenses against his children, Jeremy H. (born July 28, 2005) and Erin H.(born November 13, 2007).¹ The petitions allege that the children reside with their mother, Evelyne H., who is not a party to these family offense proceedings, and that the respondents are the cousins of the children's mother to whom petitioner is presently married. Respondents are therefore cousins of the children, and cousins-in-law of petitioner by reason of his marriage to Evelyne.²

The family offense petition filed against James G. alleges, in pertinent part, that during the weekends of December 16, 2011 and January 6, 2012, the respondent “terrorized and threatened” the two children and acted in a disorderly and inappropriate manner towards them, which included “verbal abuse” and that the children's mother “condones this abuse by sitting idle and making excuses to my children saying he's just playing.” ³

The family offense petition filed against Mike G. alleges that “[o]n the weekend of November 11, 2011, Mike constantly yelled at my son Jeremy and [made] Jeremy sit on the floor as a punishment. Every time my son Jeremy and daughter Erin come into contact with Mike he constantly tells them he's going to call the boogie man (sic). During the summer/spring of 2011, Mike would physically assault my son under the guise of play fighting. Jeremy would report to me that Mike would hurt them and leave him crying.”

Prior to a commencement of a fact-finding upon the family offense petitions, the attorney for the respondents moved for dismissal of the petitions upon the ground that the petitions fail to state a cause of action and that the petitions were facially insufficient. Petitioner's attorney opposed the motion, although counsel conceded that petitioner did not witness any of the events alleged in the petitions and that the allegations in both petitions are based entirely upon information supposedly conveyed to petitioner by his children. The Attorney for the Children, who also represents the children in pending custody proceedings, took no position as to respondents' motions.

A

While family offenses may be simultaneously prosecuted in a criminal court and litigated in Family Court (People v. Wood, 95 N.Y.2d 509, 512–513;Matter of Richardson v. Richardson, 80 AD3d 32, 36–37;Matter of Alfeo v. Alfeo, 306 A.D.2d 471), those proceedings filed in the Family Court are civil proceedings ( Richardson at 39–41; Matter of King v. Edwards, 92 AD3d 783, 784). Notwithstanding the civil nature of the proceeding, orders of protection are not available merely for the asking, and there are specific rules which apply to the commencement and trial of family offense cases.

Where a family offense proceeding is initiated in Family Court, the petitioner must file a petition that alleges in non-conclusory form conduct by the respondent which would constitute the commission of one or more of the specified family offenses (Matter of Davis v.. Venditto, 45 AD3d 837, 838;Matter of Charles E. v. Frank E., 72 AD3d 1339, 1440;Matter of McFadden v. McFadden, 83 AD3d 943;Matter of Little v. Renz, 90 AD3d 757, 758;Matter of Price v. Jenkins, 92 AD3d 787;Matter of Muller v. Castagnola, 94 AD3d 892, 2012 N.Y. Slip Op 02692).

Second, the petitioner bears the burden of proving the commission of a family offense by a “fair preponderance of the evidence” (Fam. Ct. Act § 832; Charles E. at 1441; Matter of Krasnova v. Krasnova, 83 AD3d 940, 941;Matter of Lamparillo v. Lamparillo, 84 AD3d 1381,lv denied17 NY3d 715;Matter of Mamantov v. Mamantov, 86 AD3d 540, 541,lv denied17 NY3d 715;Matter of Knibbs v. Zeman, 86 AD3d 568, 569;Matter of Aruti v.. Aruti, 88 AD3d 700, 701).

Finally, the rules of evidence apply at trial and “[o]nly competent, material and relevant evidence may be admitted at a fact-finding hearing” (Fam. Ct. Act § 834; e.g., Matter of Belinda YY. v. Lee ZZ., 74 AD3d 1394, 1395;Matter of Daoud v. Daoud, 92 AD3d 878;Matter of Nunziata v. Nunziata, 93 AD3d 800). As utilized in the statute, the term “competent evidence” has its usual meaning which is “evidence not subject to an exclusionary rule, such as the prohibition against hearsay” (People v. Swamp, 84 N.Y.2d 725, 730).

B

Petitioner's attorney concedes that the children's statements constitute hearsay, but argued that the petitions were facially sufficient despite the petitioner's lack of personal knowledge of the alleged facts. According to petitioner, the children's out-of-court statements should be admissible at the fact-finding hearing pursuant to Family Court Act § 1046(a)(vi), as the statements related to the possible abuse or neglect of the children by the respondents, and the children's statements would be admissible in a custody or visitation proceeding under article 6 of the Family Court Act.

The out-of-court statements of the children at issue here are clearly hearsay as they are sought to be offered into evidence in order to prove the truth of the matter asserted (People v. Caviness, 38 N.Y.2d 227, 230;People v. Buie, 86 N.Y.2d 501, 505). “Out-of-court statements offered for the truth of the matters they assert are hearsay and may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable” ( Nucci v. Proper, 91 N.Y.2d 597, 602; see also, People v. Brensic, 70 N.Y.2d 9, 14;People v. Johnson, 79 AD3d 1264, 1267,lv denied16 NY3d 832).

Family Court Act § 1046(a)(vi) provides that a child's out-of-court statements “relating to any allegations of abuse or neglect shall be admissible in evidence” ( see, Matter of Nicole v. ., 71 N.Y.2d 112, 117;Matter of Jeshaun R., 85 AD3d 798, 799). However, as there are “dangers of unreliability common to most hearsay exceptions” (People v. James, 93 N.Y.2d 620, 634), limitations have been placed upon the exception created by Family Court Act § 1046(a)(vi). In the context of child protective proceedings, the statute itself provides that the previous statements made by a child relating to allegations of abuse or neglect are insufficient to sustain a finding of abuse or neglect “if uncorroborated” (Fam. Ct. Act § 1046[a][vi] ). As explained in Matter of Nicole V., “[c]orroboration is not required because statements of children are generally unreliable but because the out-of-court statements are hearsay and the statute requires some further evidence to establish their reliability ” (71 N.Y.2d at 118 [italics added]; see also, Matter of Christina F., 74 N.Y.2d 112, 118).

Courts have extended the exception created by Family Court Act § 1046(a)(vi) to allow the admission of a child's out-of-court statements into evidence in custody proceedings. This extension of the exception is based upon the recognition that evidence relating to the abuse or neglect of children is pertinent to a determination of a child's custody ( see,Matter of LeFavour v. Koch, 124 A.D.2d 903, 906,lv denied69 N.Y.2d 605;Matter of Nilda S. v. Dawn K., 302 A.D.2d 237, 238,lv denied100 N.Y.2d 512:Matter of Rosario WW. v. Ellen WW., 309 A.D.2d 984;Matter of Matteo v. Tucker, 26 AD3d 731, 732;Matter of Bernthon v. Mattioli, 34 AD3d 1165;; Matter of Cobane v. Cobane, 57 AD3d 1320, 1321,lv denied12 NY3d 706;Matter of Thomas M.F. v. Lori A.A., 63 AD3d 1667, 1668,lv denied13 NY3d 703;Matter of Sutton v. Sutton, 74 AD3d 1838, 1840;Matter of Lowe v. O'Brien, 81 AD3d 1093, 1094,lv denied16 NY3d 713). In addition to the requirement that a child's out-of-court statement be corroborated where a court makes a determination of abuse or neglect of a child in the context of a custody proceeding, the exception for the admission of such statements is limited only to those statements by the child relating to possible abuse or neglect ( e.g., Matter of Kimberly CC. v. Gerry CC., 86 AD3d 728, 730;Matter of Bartlett v. Jackson, 47 AD3d 1076, 1077,lv denied10 NY3d 707). Other out-ofcourt statements of the child may not be admitted under this limited exception to the hearsay rule (Matter of Fielding v. Fielding, 41 AD3d 929, 930;Matter of Jacqueline B. v. Peter K., 8 Misc.3d 807).

There is simply no case which authorizes the admission of the children's out-of-court statements at a family offense trial, regardless of the nature of those statements, nor could there be such an exception, given that the statute expressly excludes hearsay that is not admissible under a recognized hearsay exception ( see e .g., Matter of Lydia K., 112 A.D.2d 306, 307,aff'd67 N.Y.2d 681 [child's out-of-court statement is spontaneous statement and admissible] ).

C

There are valid reasons for excluding hearsay at a family offense trial. While child protective proceedings, custody cases, and family offense proceedings may all touch upon issues relating to the care, protection, and best interests of children, those issues are generally tangential in a family offense proceeding. Rather, family offense proceedings are intended to stop violence, end family disruption...