Matter of Aaron H. v James G.

[*1] Matter of Aaron H. v James G. 2012 NY Slip Op 50790(U) Decided on May 3, 2012 Family Court, Queens County Hunt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 3, 2012
Family Court, Queens County

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

against

James G. and MIKE G., Respondents.



O-1186/12



Counsel: Susan A. Gerner, Brooklyn, for petitioner; Dominick Gullo, Staten Island,

for respondents; Dean T. Kusakabe, Forest Hills, Attorney 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).[FN1] The [*2]

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.[FN2]

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."[FN3]

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." [*3]

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 NY2d 509, 512-513; Matter of Richardson v. Richardson,

80 AD3d 32, 36-37; Matter of Alfeo v. Alfeo, 306 AD2d 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, __ AD3d __, 2012 NY Slip Op 02692). [*4]

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 denied 17 NY3d 715; Matter of Mamantov v. Mamantov, 86 AD3d 540, 541, lv denied 17

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 NY2d 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. [*5]

Caviness, 38 NY2d 227, 230; People v. Buie, 86 NY2d 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 NY2d 597, 602; see

also, People v. Brensic, 70 NY2d 9, 14; People v. Johnson, 79 AD3d 1264, 1267, lv denied 16

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 NY2d 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 NY2d 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 NY2d at 118 [italics added]; see also, Matter of

Christina F., 74 NY2d 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 AD2d 903, 906, lv denied 69 NY2d 605; Matter of Nilda S. v. Dawn K., 302 AD2d [*6]

237, 238, lv denied 100 NY2d 512: Matter of Rosario WW. v. Ellen WW., 309 AD2d 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 denied 12 NY3d 706; Matter of Thomas M.F. v.

Lori A.A., 63 AD3d 1667, 1668, lv denied 13 NY3d 703; Matter of Sutton v. Sutton, 74 AD3d

1838, 1840; Matter of Lowe v. O'Brien, 81 AD3d 1093, 1094, lv denied 16 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 denied 10 NY3d 707). Other out-of-

court 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 whichauthorizes 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 AD2d 306, 307, aff'd

67 NY2d 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 [*7]

tangential in a family offense proceeding. Rather, family offense proceedings are intended to stop

violence, end family disruption and provide protection to members of the same family or

household (Fam. Ct. Act §812 [2] [b]). Where there are outstanding issues relating to the custody

or visitation of children in addition to domestic violence, custody and visitation petitions are

invariably filed contemporaneously with the family offense petition.

The Family Court's jurisdiction is invoked under the family offense statute by an

allegation that the respondent has committed one or more family offenses. The designated family

offenses all correspond to violations of the Penal Law, as each family offense defined by Family

Court Act §812 (1) may provide the basis for a concurrent criminal prosecution (People v. Wood

at 512-513). A determination that a person has committed a family offense may result in serious

consequences. An order of protection may be issued for up to five years and the offender may be

subject to a range of court-imposed conditions (see, 22 NYCRR §205.74).[FN4] An order of

protection may be the predicate for a subsequent civil contempt proceeding in the Family Court

(Fam. Ct. Act §§846; 846-a; Matter of Walker v. Walker, 86 NY2d 624, 629-630; Matter of

Leighton-Ryan v. Ryan, 274 AD2d 775, 776; Matter of Rubackin v. Rubackin, 62 AD3d 11, 18-

19; Matter of Chastity F. v. Ernest G., 77 AD3d 1112), or the predicate for prosecution of a

criminal contempt charge in a criminal court (Penal Law §§215.50 [3]; §215.51 [b]; People v. [*8]

Wood at 513-515; People v. Inserra, 4 NY3d 30), either of which may result in the incarceration

of the party enjoined by the order. Additionally, as noted above, an order of protection may

affect a party's right to continue to reside in his or her residence, and it may impact upon a

parent's rights to have access to his or her children (Fam. Ct. Act §842 [a], [b]). Finally, the

issuance of an order of protection may render the enjoined party ineligible to possess a firearm

or be licensed to do so during the period for which the order of protection is issued (Fam. Ct.

Act §842-a [2]; e.g., Matter of Toneatti v. Schiavone, 266 AD2d 303; Matter of Aloi v. Aloi, 10

AD3d 655, 656; Matter of Engel v. Engel, 24 AD3d 548, 549).

In addition to the direct consequences which may result from a family offense finding,

there are also significant collateral consequences which may result from the issuance of an order

of protection.[FN5] While it is not possible to enumerate every possible collateral consequence which

may flow from a family offense finding, such collateral consequences include: (i) the mandatory

registration of the order upon the statewide order of protection registry (Executive Law §221-a);

(ii) the possibility that an order of protection issued in New York may subsequently be enforced

by any court of competent jurisdiction in any state or territory of the United States (Fam. Ct. Act

§154-e; 18 USC §2265 [full faith and credit for protective orders]); (iii) possible impact upon

any future custody or visitation litigation involving the children of the respondent (Fam. Ct. Act

§651 [3] [ii]; Domestic Relations Law §240 [a-1] [ii], [3] [ii]); and (iv) an impact upon [*9]

immigration status where the respondent is a non-citizen, as certain acts of domestic violence

may render the respondent subject to removal proceedings (see, 8 USC §1227 [a] [2] [E];

LaGuerre v. Mukasey, 526 F3d 1037 [7th Cir. 2008]; De Leon Castellanos v. Holder, 652 F3d

762 [7th Cir. 2011]).

Because of the direct and collateral consequences which may flow from a finding that

a person has committed a family offense, such an adjudication "constitutes a permanent and

significant stigma" (Matter of Kennedy v. Tsombanis, 277 AD2d 315; see also, Matter of Samora

v. Coutsoukis, 292 AD2d 390, 391), which may have "enduring consequences" (Matter of Zieran

v. Marvin, 2 AD3d 870, 872, lv denied 2 NY3d 707; Matter of DeSouza-Brown v. Brown, 38

AD3d 888; Matter of Biblova v. Radu, 82 AD3d 1222, 1223; Matter of Smith v. Falco-Boric, 87

AD3d 1146; Matter of Scioscia v. Scioscia, 89 AD3d 739). Given these circumstances, the

respondent in a family offense proceeding has a substantial interest in ensuring that any family

offense finding be made only upon competent evidence.

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal

construction. Courts must accept the facts alleged in the complaint as true, accord plaintiffs the

benefit of every possible inference, and determine only whether the facts as alleged fit within any

cognizable legal theory" (ABN AMRO Bank, N.V. v. MBIA Inc., 17 NY3d 208, 228; see also,

Leon v. Martinez, 84 NY3d 83, 87-88; Goshen v. Mutual Life Insurance Company of New York,

98 NY2d 314, 326; EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19).

Here petitioner concedes that he possesses no admissible evidence which could prove the

allegations in the petitions and that the petitions are based entirely on inadmissible hearsay.

Under such circumstances, the parties should not be required to endure the expense and hardship [*10]

of a trial of two petitions which will ultimately be dismissed.

Accordingly, these petitions are facially insufficient and they are dismissed for failure to

state a cause of action (Civil Practice Law and Rules §3211 [a] [7]; see, Matter of Davis v.

Venditto, 45 AD3d 837, 838; Matter of Morriseau v. Morriseau, 27 AD3d 651, 652; Matter of

Price v. Jenkins, 92 AD3d 787; Matter of Pamela N. v. Neil N., 93 AD3d 1107).

It is therefore

ORDERED, that these family offense petitions are dismissed for the reasons stated

herein.

Nothing in this decision should be construed to preclude the issuance of an order of

protection on behalf of the children pursuant to Family Court Act §656 by the Court Attorney-

Referee who will be presiding at the hearing of the custody petitions filed by the parties (see,

Matter of Larry v. O'Neill, 307 AD2d 410, 412; Matter of Anderson v. Harris, 73 AD3d 456,

457).

This constitutes the decision and order of the Court.

E N T E R:

______________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

May ____, 2012 Footnotes

Footnote 1:As a parent, the petitioner has standing to commence these family offense proceedings on behalf of his children (Matter of Hamm-Jones v. Jones, 14 AD3d 956, 959; Matter of Loriann Q. v. Frank R., 53 AD3d 735, 736; Matter of Bibeau v. Ackey, 56 AD3d 971, 972; Matter of Berg v. Mantilla, 77 AD3d 827).

Footnote 2:As petitioner and his wife were still married at the time that these petitions were filed,

petitioner has a qualifying relationship of affinity with both respondents who are his wife's

cousins. This is because a married person stands in the same degree of affinity to a spouse's

relatives (as an in-law) which his or her spouse has by consanguinity to his or her blood relatives (see, Paddock v. Wells, 2 Barb.Ch. 331; Higbe v. Leonard, 1 Denio 186, 187; Matter of Antsey v. Palmatier, 23 AD3d 780). Additionally, because these petitions were filed on behalf of the parties' children, the court would have subject matter jurisdictionbasedupon the relationship of consanguinitybetween the children and the cousins of their mother (Bibeau v. Ackey at 972).

Footnote 3:Petitioner and the children's mother are currently involved in litigation concerning the

custody of the children. Those cases were filed in 2010 and pursuant to the most recent order

the parents have temporary joint custody of the children who spend part of each week with each

parent. A custody trial is scheduled before a Court Attorney-Referee for May 23, 2012.

Footnote 4:Upon issuing an order of protection the Court may direct that: (i) the respondent shall

not communicate with the petitioner or other family members by any means; (ii) that the respondent stay away from the school or place of employment of the victim; (iii) respondent

shall refrain from interfering with the custody of a child; (iv) that respondent cooperate in seeking and obtaining medical treatment, psychiatric diagnosis and treatment, alcoholism or

drug abuse treatment, participate in a batterer's education program; (v) that respondent pay

restitution up to $10,000.00; and (vi) that respondent stay away from the home of the other

party, which may result in the exclusion of the respondent of his or her own residence.

Footnote 5:Collateral consequences are defined as those which "are peculiar to the individual and

generally result from actions taken by agencies [that] the court does not control" (People v. Ford,

86 NY3d 397, 403; see also, People v. Cantu, 4 NY3d 242, 244; People v. Gravino, 14 NY3d 546, 553-556; People v. Hartnett, 16 NY3d 200, 205; Padilla v. Kentucky, ___ US ___, 130

SCt 1473, 1481-1482 [2010]; United States v. Nicholson, ___ F3d ___, Case. No. 11-4531,

slip opn at 7 [4th Cir. 2012]).