§ 1046 — Evidence

New York § 1046

• Jurisdiction: New York
• Law FCT: Family Court Act
• Part 4: Hearings
• Art. 10: Child Protective Proceedings

Text

§ 1046. Evidence. (a) In any hearing under this article and article\nten-A of this act:\n (i) proof of the abuse or neglect of one child shall be admissible\nevidence on the issue of the abuse or neglect of any other child of, or\nthe legal responsibility of, the respondent; and\n (ii) proof of injuries sustained by a child or of the condition of a\nchild of such a nature as would ordinarily not be sustained or exist\nexcept by reason of the acts or omissions of the parent or other person\nresponsible for the care of such child shall be prima facie evidence of\nchild abuse or neglect, as the case may be, of the parent or other\nperson legally responsible; and\n (iii) proof that a person repeatedly misuses a drug or drugs or\nalcoholic beverages, to the extent that it has or would ordinarily have\nthe effect of producing in the user thereof a substantial state of\nstupor, unconsciousness, intoxication, hallucination, disorientation, or\nincompetence, or a substantial impairment of judgment, or a substantial\nmanifestation of irrationality, shall be prima facie evidence that a\nchild of or who is the legal responsibility of such person is a\nneglected child except that such drug, or alcoholic beverage misuse\nshall not be prima facie evidence of neglect when such person is\nvoluntarily and regularly participating in a recognized rehabilitative\nprogram. Provided however, the sole fact that an individual consumes\ncannabis, without a separate finding that the child's physical mental or\nemotional condition was impaired or is in imminent danger of becoming\nimpaired established by a fair preponderance of the evidence shall not\nbe sufficient to establish prima facie evidence of neglect; and\n (iv) any writing, record or photograph, whether in the form of an\nentry in a book or otherwise, made as a memorandum or record of any\ncondition, act, transaction, occurrence or event relating to a child in\nan abuse or neglect proceeding of any hospital or any other public or\nprivate agency shall be admissible in evidence in proof of that\ncondition, act, transaction, occurrence or event, if the judge finds\nthat it was made in the regular course of the business of any hospital,\nor any other public or private agency and that it was in the regular\ncourse of such business to make it, at the time of the act, transaction,\noccurrence or event, or within a reasonable time thereafter. A\ncertification by the head of or by a responsible employee of the\nhospital or agency that the writing, record or photograph is the full\nand complete record of said condition, act, transaction, occurrence or\nevent and that it was made in the regular course of the business of the\nhospital or agency and that it was in the regular course of such\nbusiness to make it, at the time of the condition, act, transaction,\noccurrence or event, or within a reasonable time thereafter, shall be\nprima facie evidence of the facts contained in such certification. A\ncertification by someone other than the head of the hospital or agency\nshall be accompanied by a photocopy of a delegation of authority signed\nby both the head of the hospital or agency and by such other employee.\nAll other circumstances of the making of the memorandum, record or\nphotograph, including lack of personal knowledge of the maker, may be\nproved to affect its weight, but they shall not affect its\nadmissibility; and\n (v) any report filed with the statewide central register of child\nabuse and maltreatment by a person or official required to do so\npursuant to section four hundred thirteen of the social services law\nshall be admissible in evidence; and\n (vi) previous statements made by the child relating to any allegations\nof abuse or neglect shall be admissible in evidence, but if\nuncorroborated, such statements shall not be sufficient to make a\nfact-finding of abuse or neglect. Any other evidence tending to support\nthe reliability of the previous statements, including, but not limited\nto the types of evidence defined in this subdivision shall be sufficient\ncorroboration. The testimony of the child shall not be necessary to make\na fact-finding of abuse or neglect; and\n (vii) neither the privilege attaching to confidential communications\nbetween husband and wife, as set forth in section forty-five hundred two\nof the civil practice law and rules, nor the physician-patient and\nrelated privileges, as set forth in section forty-five hundred four of\nthe civil practice law and rules, nor the psychologist-client privilege,\nas set forth in section forty-five hundred seven of the civil practice\nlaw and rules, nor the social worker-client privilege, as set forth in\nsection forty-five hundred eight of the civil practice law and rules,\nnor the rape crisis counselor-client privilege, as set forth in section\nforty-five hundred ten of the civil practice law and rules, shall be a\nground for excluding evidence which otherwise would be admissible.\n (viii) proof of the "impairment of emotional health" or "impairment of\nmental or emotional condition" as a result of the unwillingness or\ninability of the respondent to exercise a minimum degree of care toward\na child may include competent opinion or expert testimony and may\ninclude proof that such impairment lessened during a period when the\nchild was in the care, custody or supervision of a person or agency\nother than the respondent.\n (b) In a fact-finding hearing: (i) any determination that the child is\nan abused or neglected child must be based on a preponderance of\nevidence;\n (ii) whenever a determination of severe or repeated abuse is based\nupon clear and convincing evidence, the fact-finding order shall state\nthat such determination is based on clear and convincing evidence; and\n (iii) except as otherwise provided by this article, only competent,\nmaterial and relevant evidence may be admitted.\n (c) In a dispositional hearing and during all other stages of a\nproceeding under this article, except a fact-finding hearing, and in\npermanency hearings and all other proceedings under article ten-A of\nthis act, only material and relevant evidence may be admitted.\n