You are here: / / TRANSCRIPT OF FAMILY COURT ACT 1028 HEARING SHOULD NOT HAVE BEEN USED AS...
, ,

TRANSCRIPT OF FAMILY COURT ACT 1028 HEARING SHOULD NOT HAVE BEEN USED AS A REPLACEMENT FOR AN ABUSE-NEGLECT FACT-FINDING HEARING BECAUSE THE PROOF REQUIREMENTS ARE DIFFERENT AND BECAUSE THERE WAS NO FINDING THAT THE WITNESS AT THE 1028 HEARING WAS UNAVAILABLE (SECOND DEPT).

The Second Department, reversing Family Court, determined the transcript of the Family Court Act 1028 hearing (seeking the quick return of a child temporarily removed pending a fact-finding hearing) should not have been used to replace the abuse/neglect fact-finding hearing because the proof requirements are different:

Family Court Act § 1028 permits a parent to apply for the return of a child who has been temporarily removed from the custody of the parent pending the fact-finding hearing on the issue of abuse or neglect … . “[A] section 1028 hearing is intended to give a parent an opportunity for a prompt reunion with the child, pending trial” … . In analyzing an application for a child’s return under Family Court Act § 1028, a court must engage in a test balancing the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal … . Section 1028 hearings, however, were not intended to replace fact-finding hearings, as the evidentiary standards are different. Family Court Act § 1046 provides that “only competent, material and relevant evidence may be admitted” at a fact-finding hearing, whereas evidence “[i]n a dispositional hearing and during all other stages of a proceeding under” Family Court Act article 10 need only be “material and relevant” … . A determination on an application pursuant to section 1028 “should not be taken as any indication of what ultimate determination should be made by the Family Court as to [a] petition alleging abuse and neglect” … . “At a fact-finding hearing, any determination that a child is an abused or neglected child must be based on a preponderance of the evidence” … .

CPLR 4517, which governs the admissibility of prior testimony in a civil action, is applicable here … , as the Family Court Act does not prescribe the issue of whether testimony from a prior hearing pursuant to Family Court Act article 10 may be admitted into evidence on the petitioner’s direct case in a fact-finding hearing. Pursuant to CPLR 4517(a)(3), prior trial testimony of a witness may be used by any party for any purpose against another party if the court finds that such witness is dead or otherwise unavailable. In this matter, the Family Court made no such finding.

Here, the Family Court should not have admitted into evidence at the fact-finding hearing transcripts of testimony from the hearing conducted pursuant to Family Court Act § 1028. As ACS now correctly concedes, the caseworker’s testimony at the prior hearing, which included hearsay statements, actually formed the basis of the court’s neglect finding at the subsequent fact-finding hearing. Matter of Louie L. V. (Virzhiniya T. V.), 2019 NY Slip Op 07592, Second Dept 10-23-19

 

You might also like
Question of Fact Raised Whether Police Officers Used Excessive Force In Violation of Plaintiff’s Civil Rights—Criteria Explained
Criteria for Taxpayer Lawsuit Against School District for Misuse of Public Property Not Met; Failure to Serve Notice of Claim Fatal
THE PROMISSORY NOTE WAS NOT DEMONSTRATED TO BE AN INSTRUMENT FOR THE PAYMENT OF MONEY ONLY, THE MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT).
HERE DEFENDANT, WHO PLED GUILTY TO BURGLARY AS A SEXUALLY MOTIVATED FELONY, ATTEMPTED TO CHALLENGE HIS CERTIFICATION AS A SEX OFFENDER, PRONOUNCED AT SENTENCING, IN THE SORA RISK-LEVEL ASSESSMENT PROCEEDING; THE SEX OFFENDER CERTIFICATION WAS DEEMED TO BE PART OF THE JUDGMENT OF CONVICTION WHICH CAN ONLY BE CHALLENGED ON DIRECT APPEAL (SECOND DEPT).
WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT.
THE CERTIFICATES OF ACKNOWLEDGMENT FOR THE DEED AND OTHER DOCUMENTS DEMONSTRATING PLAINTIFF’S OWNERSHIP OF THE REAL PROPERTY CREATED A PRESUMPTION OF DUE EXECUTION WHICH WAS NOT OVERCOME BY DEFENDANTS’ ALLEGATIONS OF FORGERY (SECOND DEPT). ​
PURSUANT TO EXECUTIVE ORDERS RESPONDING TO THE COVID-19 PANDEMIC, THE TIME BETWEEN THE FILING OF A FELONY COMPLAINT AND ARRAIGNMENT ON AN INDICTMENT WAS EXCLUDED FROM THE SPEEDY TRIAL CLOCK; HERE THE DEFENDANT’S MOTION TO DIMSISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE ARBITRATION AWARD WAS INDEFINITE AND NONFINAL AND SHOULD NOT HAVE BEEN CONFIRMED... A DEFENDANT WHO PLEADS GUILTY FORFEITS THE RIGHT TO APPEAL THE DENIAL OF A SPEEDY...