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THE DEPARTMENT OF SOCIAL SERVICES DID NOT DEMONSTRATE RESPONDENTS (MOTHER AND FATHER) VIOLATED THE ORDER OF SUPERVISION; IN THIS ORDER-VIOLATION PROCEEDING, FAMILY COURT SHOULD NOT HAVE RELIED UPON AND REFERRED TO EVIDENCE, SOME OF WHICH WAS INADMISSIBLE HEARSAY, FROM THE UNDERLYING NEGLECT PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the Department of Social Services (petitioner) did not demonstrate respondents (mother and father) violated the order of supervision and Family Court should not have incorporated evidence from a separate neglect proceeding into the order-violation proceeding:

… [I]t was error in the context of a violation motion for Family Court to find that respondents were in “technical” compliance with the order of supervision but were nonetheless in violation of said order. … [T]he quantum of proof required to establish a willful violation of a court order pursuant to Family Ct Act § 1072 is clear and convincing evidence … , which was not established here. * * *

… [T]he court permitted petitioner to introduce unproven allegations against respondents from the underlying neglect proceeding, evidence relating to other conduct that predated the … order, as well as inadmissible hearsay contained in the case notes authored by petitioner’s employees and the children’s therapists. As the court’s decision is replete with references to this evidence, the admission of this evidence, if relied upon at all to establish willful violations, irreparably tainted its decision … . Matter of Nicholas L. (Melissa L.), 2021 NY Slip Op 05746, Third Dept 10-21-21

 

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