In the Matter of AM, on Behalf of HB and Others, Petitioner, v WB, Respondent.

Family Court, Otsego County, July 31, 2018

Dennis B. Laughlin for respondent in the first and second above-entitled proceedings.

Ellen Coccoma, County Attorney (Susan M. Lettis of counsel), for presentment agency.

Bruce Maxson, Public Defender (Jhilmil Ghaleb of counsel), for AM, petitioner in the second above-entitled proceeding.

The Legal Aid Society of Mid-New York, Inc. (Anita Ribeiro-Ebosele of counsel) for interested party.

Larisa Obolensky, Attorney for the Children.

[*2]Counsel for respondent WB filed a motion seeking an order bifurcating the hearing on the neglect petition from the hearing on the family offense petition. The motion was made returnable on the hearing date of the petitions. The hearing was adjourned at the request of respondent's counsel based upon an apparent medical issue for respondent. No papers were submitted in opposition to the motion.

An outline of the procedural history in this matter is necessary to place the motion in context. The family offense petition was filed by AM on behalf of respondent's three children on March 23, 2018. In the context of that proceeding, the court directed the Otsego County Department of Social Services to conduct an investigation pursuant to Family Court Act § 1034. The Otsego County Department of Social Services filed the neglect petition on May 7, 2018, which alleges respondent neglected the three subject children. The neglect petition makes reference to the family offense petition, but contains significantly more allegations than the family offense petition and covers a longer time period. AM filed a petition under article 6 of the Family Court Act on April 9, 2018. It can be said that all pending petitions allege abuse of the children by respondent father. All three petitions were, and are, scheduled to be heard on the same date.

The motion is based on respondent's contention that if the matters are not bifurcated, hearsay which would be admissible{**61 Misc 3d at 243} in the neglect proceeding under a statutory exception but inadmissible under the family offense proceeding would become part of the evidence upon which the court determines the family offense petition. Respondent further contends that the presentment agency in the neglect proceeding, which does not have standing in the family offense proceeding, would nevertheless be permitted to examine witnesses in the family offense proceeding by virtue of the matters being tried together.

Although referred to as bifurcation in the motion papers, what the court understands the respondent to be seeking is severance, which is authorized under CPLR 603. The use of the word bifurcation is understandable given that severance and bifurcation are sometimes referred to synonymously, but mean two different things legally. Bifurcation refers to separation of issues within the same trial, most typically questions of liability and damages (see Barrera v Skaggs-Walsh, Inc., 279 AD2d 442 [2d Dept 2001]), compared to severance, which contemplates separate trials (see County of Chenango Indus. Dev. Agency v Lockwood Greene Engrs., 111 AD2d 508 [3d Dept 1985]). Respondent is seeking to have the petitions tried separately and the court will, therefore, determine the motion as one for severance. A motion for severance is entrusted to the court's discretion which may be made in furtherance of convenience or to avoid prejudice, but is to be granted sparingly (see County of Chenango Indus. Dev. Agency at 510; CPLR 603).

Both grounds of respondent's motion go to potential prejudice. The court will address, first, the issue of the potential admissibility of hearsay evidence. Family Court Act § 834, which governs evidence which is permitted in family offense proceedings, limits admissible evidence to competent, material and relevant evidence. As such, hearsay evidence would not be admissible in a hearing under article 8 of the Family Court Act.

By contrast, Family Court Act § 1046 (a) (vi) provides that previous statements made by a child are admissible in evidence in a proceeding under article 10 of the Family Court Act, but require corroboration. This exception to the prohibition against hearsay has been extended to [*3]proceedings instituted under Domestic Relations Law §§ 70 and 240, where the "gravamen of [the petitions] involves child abuse," but still requires corroboration (see Matter of Le Favour v Koch, 124 AD2d 903, 906 [3d Dept 1986]). The exception also applies in custody proceedings under Family Court Act article 6 based{**61 Misc 3d at 244} upon allegations of child abuse (see Matter of Hover v Shear, 232 AD2d 749, 750 [3d Dept 1996]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 [3d Dept 2003]).

The Appellate Division, Third Department, has not carved out a clear exception to the hearsay prohibition in the context of family offense proceedings, but has also seemed to indicate that hearsay claims of abuse may be admissible in a family offense petition if corroborated (Matter of Leighann W. v Thomas X., 141 AD3d 876, 879 [3d Dept 2016]). The court is ever mindful of its obligations to protect both the rights of the accused and those of the children who are subject to the proceedings in this court. In that regard, the court is vested with the substantial discretion in fashioning ways in which to protect vulnerable child witnesses of abuse (see Matter of Kyanna T., 19 Misc 3d 1114[A], 2007 NY Slip Op 52547[U] [Fam Ct, Kings County 2007]). Additionally, the appellate courts have recognized the same need to protect children by extending the statutory hearsay exception afforded in Family Court Act article 10 proceedings to article 6 proceedings while simultaneously balancing the rights of the accused by requiring corroboration of out-of-court statements. It would, therefore, be incongruous for the court, in the context of the pending petitions, to permit such statements to be used in the context of the article 6 and article 10 petitions, but then potentially require the children to testify in the article 8 proceedings.

That does not mean, however, that the court is prematurely ruling as to which evidence will be admitted. It is simply addressing respondent's hypothetical concern that he would be prejudiced by a joint trial of all pending petitions because of the potential for hearsay statements of the children. The court finds that the same requirement of corroboration eliminates the potential prejudice and, therefore, eliminates the need for a separate trial on the family offense petition.

As to respondent's concern that the presentment agency will be permitted to examine witnesses in the family offense proceeding, this appears to be a novel issue as framed. However, in the context of the family offense proceeding, the court directed the Department of Social Services to conduct an investigation pursuant to Family Court Act § 1034, thereby conferring intervenor status upon DSS in the matter, which consequently grants them the right to participate (see Matter of Trustco Bank [Lally], 33 Misc 3d 745, 751 [Sur Ct, Schenectady County 2011]). Even if the parameters of their{**61 Misc 3d at 245} participation in the family offense proceeding were accepted as being more limited, the court finds that many of the allegations contained in all pending petitions center around the same course of conduct. In the interests of judicial economy, it seems entirely appropriate that the examination of any witnesses only be conducted once. To the extent that the Department of Social Services may ask questions outside of the scope of their standing, respondent will have an opportunity to object. The court concludes that there is no basis to sever the family offense proceeding from the other proceedings on the second ground.

Now, therefore, it is hereby ordered and adjudged that the motion is denied and dismissed.