New York State Law

Family Court Law

Consolidated Laws of NY's FCA code

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Part 4 - Article 10 - Family Court

HEARINGS

  S 1041. Required  findings concerning notice. No factfinding hearing
  may commence under this article unless the court enters a finding:
    (a) that the parent  or  other  person  legally  responsible  for  the
  child's  care  is present at the hearing and has been served with a copy
  of the petition; or
    (b) if the parent or other person legally responsible for the care  of
  the  child is not present, that every reasonable effort has been made to
  effect service under section  ten  hundred  thirty-six  or  ten  hundred
  thirty-seven.

  S 1042. Effect  of absence of parent or other person responsible for
  care. If the parent or other person legally responsible for the  child's
  care is not present, the court may proceed to hear a petition under this
  article only if the child is represented by counsel. The parent or other
  person  legally  responsible for the child's care shall be served with a
  copy of the order of  disposition  with  written  notice  of  its  entry
  pursuant  to section one thousand thirty-six of this article. Within one
  year of such service or substituted  service  pursuant  to  section  one
  thousand  thirty-six of this article, the parent or other person legally
  responsible for the child's  care  may  move  to  vacate  the  order  of
  disposition and schedule a rehearing. Such motion shall be granted on an
  affidavit  showing such relationship or responsibility and a meritorious
  defense to the petition, unless the court finds that the parent or other
  person willfully refused to appear at the hearing,  in  which  case  the
  court may deny the motion.

  S 1043. Hearings  not open to the public. The general public may be
  excluded from any hearing under this article and only such  persons  and
  the  representatives  of authorized agencies admitted thereto as have an
  interest in the case.

  S 1044. Definition  of  "fact-finding  hearing". When used in this
  article, "fact-finding hearing" means a hearing to determine whether the
  child is an abused or neglected child as defined by this article.

  S 1045. Definition  of  "dispositional  hearing". When used in this
  article, "dispositional hearing" means a hearing to determine what order
  of disposition should be made.

  S 1046. Evidence. (a) In any hearing under this article and article
  ten-A of this act:
    (i) proof of the abuse or neglect of one  child  shall  be  admissible
  evidence  on the issue of the abuse or neglect of any other child of, or
  the legal responsibility of, the respondent; and
    (ii) proof of injuries sustained by a child or of the condition  of  a
  child  of  such  a  nature as would ordinarily not be sustained or exist
  except by reason of the acts or omissions of the parent or other  person
  responsible  for the care of such child shall be prima facie evidence of
  child abuse or neglect, as the case may  be,  of  the  parent  or  other
  person legally responsible; and
    (iii)  proof  that  a  person  repeatedly  misuses  a drug or drugs or
  alcoholic beverages, to the extent that it has or would ordinarily  have
  the  effect  of  producing  in  the  user thereof a substantial state of
  stupor, unconsciousness, intoxication, hallucination, disorientation, or
  incompetence, or a substantial impairment of judgment, or a  substantial
  manifestation  of  irrationality,  shall  be prima facie evidence that a
  child of or who  is  the  legal  responsibility  of  such  person  is  a
  neglected child except that such drug or alcoholic beverage misuse shall
  not  be  prima facie evidence of neglect when such person is voluntarily
  and regularly participating in a recognized rehabilitative program; and
    (iv) any writing, record or photograph, whether  in  the  form  of  an
  entry  in  a  book  or  otherwise, made as a memorandum or record of any
  condition, act, transaction, occurrence or event relating to a child  in
  an  abuse  or  neglect proceeding of any hospital or any other public or
  private agency  shall  be  admissible  in  evidence  in  proof  of  that
  condition,  act,  transaction,  occurrence  or event, if the judge finds
  that it was made in the regular course of the business of any  hospital,
  or  any  other  public  or private agency and that it was in the regular
  course of such business to make it, at the time of the act, transaction,
  occurrence  or  event,  or  within  a  reasonable  time  thereafter.   A
  certification  by  the  head  of  or  by  a  responsible employee of the
  hospital or agency that the writing, record or photograph  is  the  full
  and  complete  record of said condition, act, transaction, occurrence or
  event and that it was made in the regular course of the business of  the
  hospital  or  agency  and  that  it  was  in  the regular course of such
  business to make it, at the time of  the  condition,  act,  transaction,
  occurrence  or  event,  or within a reasonable time thereafter, shall be
  prima facie evidence of the facts contained  in  such  certification.  A
  certification  by  someone other than the head of the hospital or agency
  shall be accompanied by a photocopy of a delegation of authority  signed
  by  both  the head of the hospital or agency and by such other employee.
  All other circumstances of the  making  of  the  memorandum,  record  or
  photograph,  including  lack  of personal knowledge of the maker, may be
  proved  to  affect  its  weight,  but  they   shall   not   affect   its
  admissibility; and
    (v)  any  report  filed  with  the statewide central register of child
  abuse and maltreatment by  a  person  or  official  required  to  do  so
  pursuant  to  section  four  hundred thirteen of the social services law
  shall be admissible in evidence; and
    (vi) previous statements made by the child relating to any allegations
  of  abuse  or  neglect  shall  be  admissible  in   evidence,   but   if
  uncorroborated,  such  statements  shall  not  be  sufficient  to make a
  fact-finding of abuse or neglect. Any other evidence tending to  support
  the  reliability  of the previous statements, including, but not limited
  to the types of evidence defined in this subdivision shall be sufficient
  corroboration. The testimony of the child shall not be necessary to make
  a fact-finding of abuse or neglect; and
    (vii) neither the privilege attaching to  confidential  communications
  between husband and wife, as set forth in section forty-five hundred two
  of  the  civil  practice  law  and  rules, nor the physician-patient and
  related privileges, as set forth in section forty-five hundred  four  of
  the civil practice law and rules, nor the psychologist-client privilege,
  as  set  forth in section forty-five hundred seven of the civil practice
  law and rules, nor the social worker-client privilege, as set  forth  in
  section  forty-five  hundred  eight of the civil practice law and rules,
  nor the rape crisis counselor-client privilege, as set forth in  section
  forty-five  hundred  ten of the civil practice law and rules, shall be a
  ground for excluding evidence which otherwise would be admissible.
    (viii) proof of the "impairment of emotional health" or "impairment of
  mental or emotional condition" as  a  result  of  the  unwillingness  or
  inability  of the respondent to exercise a minimum degree of care toward
  a child may include  competent  opinion  or  expert  testimony  and  may
  include  proof  that  such  impairment lessened during a period when the
  child was in the care, custody or supervision  of  a  person  or  agency
  other than the respondent.
    (b) In a fact-finding hearing: (i) any determination that the child is
  an  abused  or  neglected  child  must  be  based  on a preponderance of
  evidence;
    (ii) whenever a determination of severe or  repeated  abuse  is  based
  upon  clear  and convincing evidence, the fact-finding order shall state
  that such determination is based on clear and convincing evidence; and
    (iii) except as otherwise provided by this  article,  only  competent,
  material and relevant evidence may be admitted.
    (c)  In  a  dispositional  hearing  and  during  all other stages of a
  proceeding under this article, except a  fact-finding  hearing,  and  in
  permanency  hearings  and  all  other proceedings under article ten-A of
  this act, only material and relevant evidence may be admitted.

  S 1047. Sequence of hearings. (a) Upon completion of the fact-finding
  hearing, the dispositional hearing may commence  immediately  after  the
  required findings are made.
    (b)  Reports  prepared  by  the probation service or a duly authorized
  association, agency, society or institution for use by the court at  any
  time  for  the  making  of  an  order  of  disposition  shall  be deemed
  confidential information furnished to the court which  the  court  shall
  make available for inspection and copying by all counsel. The court may,
  in  its  discretion,  withhold  from  disclosure, a part or parts of the
  reports which are not relevant to a proper disposition,  or  sources  of
  information which have been obtained on a promise of confidentiality, or
  any  other  portion  thereof,  disclosure  of  which would not be in the
  interests of justice or in the best interests of the child. In all cases
  where a part or parts of the reports are not disclosed, the court  shall
  state  for  the  record  that  a  part or parts of the reports have been
  excepted and the reasons for its  action.    The  action  of  the  court
  excepting  information  from  disclosure  shall  be subject to review on
  appeal from the order of disposition. Such reports may not be  furnished
  to  the court prior to the completion of a fact-finding hearing, but may
  be used in a dispositional hearing.

  S 1048. Adjournments. (a) The court may adjourn a fact-finding hearing
  or a dispositional hearing for good cause shown on its own motion, or on
  motion of the corporation counsel, county attorney or district attorney,
  or  on  motion  of  the  petitioner  or on motion of the child or on his
  behalf or of the parent or other person legally responsible for the care
  of the child. If so requested by the  parent  or  other  person  legally
  responsible  for the care of the child, the court shall not proceed with
  a fact-finding hearing earlier than three days after service of  summons
  and  petition,  unless  emergency  medical  or  surgical  procedures are
  necessary to safeguard the life or health of the child.
    (b) At the conclusion of a fact-finding hearing and  after  the  court
  has  made findings required before a dispositional hearing may commence,
  the court may on its  own  motion  or  motion  of  the  respondent,  the
  petitioner or the child's attorney order a reasonable adjournment of the
  proceedings  to  enable the court to make inquiry into the surroundings,
  conditions and capacities of the persons involved in the proceedings.
    (c) Whenever a child has been remanded to the care  of  an  agency  or
  institution  under section ten hundred fifty-one of this article, notice
  of any  dispositional  hearing  shall  be  served  upon  the  agency  or
  institution  with  whom  the  child  was  placed  and  upon  the  agency
  supervising the care of the child on behalf of the agency with whom  the
  child  was  placed.  Service of notice of the adjourned hearing shall be
  made in such manner and  on  such  notice  as  the  court  may,  in  its
  discretion, prescribe. Any such agency or institution served with notice
  pursuant  to  this  subdivision  may  apply to the court for leave to be
  heard.

  S 1049. Special consideration in certain cases. In scheduling hearings
  and  investigations,  the court shall give priority to proceedings under
  this article involving abuse or in which a child has been  removed  from
  home before a final order of disposition. Any adjournment granted in the
  course  of  such  a  proceeding  should  be  for  as  short a time as is
  practicable.

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