Family Court, Bronx County, June 4, 2019

Administration for Children's Services (Deanna DiCaprio of counsel) for petitioner.

Carlos Gonzalez for respondent.

Aleza Ross for Michelle A., nonparty.

The Legal Aid Society, Juvenile Rights Practice (Hayley Pine of counsel), Attorney for the Children.

A motion having been filed by petitioner Commissioner of the Administration for Children's Services of the City of New York with this court on May 20, 2019, requesting an order on a motion granting petitioner a Sirois hearing, etc. and a Judge of this court upon examining the motion papers and supporting affidavit(s) and opposition papers, finds that motion is granted for the following reasons:

On November 9, 2018, petitioner New York City Administration for Children's Services (ACS) commenced this Family Court Act article 10 petition alleging that the subject children M.V. and C.V. are neglected children by virtue of their father Jorge V. (respondent) perpetrating acts of domestic violence against their mother Michelle A. in their presence. The article 10 petition includes allegations that on September 24, 2018, Michelle A. had reported to Child Protective Specialist (CPS) Banson a 13-year history of domestic violence, including specific events regarding recent incidents, but that she had failed to previously report the abuse as she was concerned that{**64 Misc 3d at 888} respondent would lose his employment.^[FN1] On the filing date of the article 10 petition, respondent appeared by counsel and denied the allegations in the petition. The non-respondent mother Michelle A. also appeared in court and was assigned counsel.

At the initial appearance on the article 10 petition, it was brought to the court's attention that Michelle A. had filed a family offense petition in Kings County under Kings County docket No. O-XXXXX/18 on August 28, 2018. The family offense petition also alleges a 13-year history of physical and verbal abuse by respondent as well as claims that respondent asserted a pattern of control and manipulation over her including allegations of multiple incidents of respondent calling 911 and lying to them that she was suicidal to make her appear unstable. Michelle A. was awarded a temporary full stay away order of protection on behalf of herself and the subject children on the filing date of the family offense petition, and the matter was adjourned for return of process on November 1, 2018. On the return date of that matter, both parties appeared and agreed to modify the temporary order of protection to remove the children from it. The parties also agreed that the matter had been calendared in Kings County in error and the matter was then referred to Bronx County where it was scheduled to be heard on December 3, 2018, and assigned a new docket number under Bronx County docket No. O-XXXXX/18. [*2]Michelle A. thereafter filed a supplemental family offense petition under Bronx County docket No. O-XXXXX-18/18A indicating that the parties were trying to "work things out" and asked that the temporary order of protection be modified to "just include the usual terms provision." Upon the filing of the instant article 10 petition, Michelle A.'s family offense petitions under O-XXXXX-18 and O-XXXXX-18/18A were referred to this Part and were advanced to be heard on November 9, 2018. Upon inquiry by the court as to the basis for ACS waiting several weeks to file the article 10 petition after learning of the allegations of neglect, it was informed that Michelle A. initially entered a domestic violence shelter with the subject children but that she had recently moved back into the same building respondent resides in.

Under the instant article 10 docket, on November 9, 2018, the court issued an order temporarily releasing the subject{**64 Misc 3d at 889} children to Michelle A. under ACS supervision and on condition she enforce any orders of protection on behalf of herself and the subject children. The court also issued a temporary order of protection on behalf of the subject children and Michelle A. with a carve out for ACS or ACS approved resource supervised visitation between respondent and the children. Respondent's application that Michelle A. supervise the visits was denied and the matter was adjourned for further proceedings, including a trial on the family offense petition. On December 12, 2018, the parties appeared for the trial on the family offense petition at which time Michelle A. requested to withdraw the petition without prejudice. The court granted the application and modified the temporary order of protection under the article 10 petition at her request to include only "limited usual terms" on her behalf.^[FN2] On that date, respondent again requested that Michelle A. supervise his visits with the children. That application was again denied by the court. The article 10 petition was then adjourned for a fact-finding hearing on February 11, 2019. The hearing commenced that day with CPS Banson testifying on behalf of ACS and then the hearing was adjourned for petitioner to call further witnesses, including Michelle A. Upon learning that Michelle A. no longer intended to testify as to her prior representations to ACS and the court, ACS is now requesting that the court conduct a Sirois hearing so that it may offer Michelle A.'s prior statements regarding the alleged domestic violence. The application is supported by the Attorney for the Children and opposed by respondent.

The concept of a Sirois hearing relates to "whenever the People allege specific facts which demonstrate a 'distinct possibility' that a criminal defendant's misconduct has induced a witness' unlawful refusal to testify at trial or has caused the witness' disappearance or demise, the People shall be given the opportunity to prove that misconduct at an evidentiary hearing" (Matter of Holtzman v Hellenbrand, 92 AD2d 405, 415 [2d Dept 1983], quoting United States v Mastrangelo, 662 F2d 946, 952 [2d Cir 1981]). The rationale for such is that "the law will not allow a person to take advantage of his own wrong" (People v Geraci, 85 NY2d 359, 366 [1995] [internal quotation marks omitted]). "Thus, if a witness' silence is procured by the defendant himself, whether by chicanery, by threats, or by actual{**64 Misc 3d at 890} violence or murder, the defendant cannot then assert his confrontation clause rights" (United States v Mastrangelo, 693 F2d 269, 272-273 [2d Cir 1982] [citations omitted]). As such, if it established that the witness is unavailable due to the defendant's malfeasance, the court may consider out-of-court statements made by the unavailable [*3]witness (see People v Cotto, 92 NY2d 68 [1998]).

While a Sirois hearing finds its roots in criminal cases, it is clear through its progeny that it is not limited to criminal proceedings (see Diaz v United States, 223 US 442, 458 [1912] [" 'Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong' "]) and has been applied in the context of Family Court Act article 10 proceedings which do not implicate the same level of protection afforded to criminal defendants under the Sixth Amendment (see Matter of Brian R. [Joel V.], 48 Misc 3d 410 [Fam Ct, Kings County 2015]; Matter of Zoe N., Bronx County, Apr. 4, 2019, Pels, J., docket No. NA 23800-4/18).

In order to warrant a hearing on the matter, the burden is on the presentment agency to set forth facts demonstrating a "distinct possibility" that respondent's actions induced the witness to refuse to testify or otherwise be available (Matter of Holtzman v Hellenbrand, 92 AD2d at 415). A witness may be deemed unavailable in instances where he or she is physically available but refuses to testify or recants his or her statements under circumstances attributed to the respondent's misconduct (see People v Byrd, 51 AD3d 267, 273-274 [1st Dept 2008] [evidence of history of domestic violence by the defendant against the witness considered in determining that defendant's visits to the hospital and innocuous calls to her after he nearly beat her to death had a coercive effect on her decision not to testify in light of a history of defendant's controlling behavior over the witness]; People v Jernigan, 41 AD3d 331 [1st Dept 2007] [witness's sudden refusal to testify found to be causally connected to defendant's acts, despite no evidence of threats being made, where there was history of domestic violence and defendant repeatedly calling her imploring her not to testify]; People v Turnquest, 35 Misc 3d 329 [Sup Ct, Queens County 2012] [although witness was readily willing to testify, she was deemed to be "unavailable" for purposes of considering her out-of-court statements in light of evidence presented attributing her recantation to the acts of the defendant]).

Petitioner, with the support of the Attorney for the Children's submission, has met its burden in demonstrating its{**64 Misc 3d at 891} entitlement to a hearing on the matter. In support of its motion, ACS submitted affidavits from CPS Banson and maternal great-aunt Stephanie O. CPS Banson attested to meeting with Michelle A. at a domestic violence shelter on September 24, 2018, in response to an Oral Report Transmission he was charged with investigating involving allegations of domestic violence. Banson states that during his meeting with Michelle A. that day, she reported that she has been a victim of emotional abuse for approximately 12 years and physical abuse for the last eight years at the hands of respondent. According to Banson, she provided details as to specific instances of domestic violence, including events in the presence of the children. He also states that Michelle A. reported that the police responded to multiple incidents, but respondent would lie to them when they arrived. Banson also indicates that Michelle A. informed him that she was never the one to call the police as she was afraid respondent would lose his employment. The affidavit from Stephanie O. states that she is the maternal aunt of Michelle A. and that Michelle A. came to live with her in September 2018, for approximately one week with the subject children. Stephanie O. states that she heard the child C.V. state "remember that time when daddy punched mommy in the nose and made her bleed." Also during the visit, Michelle A. stated to Stephanie O. that a neighbor named Ms. P. called her at the request of respondent to ask her not to go forward with the order of protection. Stephanie O. also attested that Michelle A. had told her on many occasions since 2008 that respondent is abusive to her. Michelle A. [*4]had informed her that the police were called on many occasions and that respondent would tell them he feared for his and the children's safety and on multiple occasions Michelle A. was hospitalized as a result of respondent stating to the police that she was unstable. As relevant here, Stephanie O. attests that Michelle A. told her that she feared if she left respondent she would lose her children and that she would have nowhere to live as their apartment belongs to him.

In support of petitioner's motion, the Attorney for the Children presented copies of the aforementioned family offense petitions and Michelle A.'s subsequent requests to modify them to try to work things out with respondent.

Petitioner's request for a hearing must be considered in the context of the substantive backdrop of indicia of a long history of domestic violence and the impact that may have on the witness.{**64 Misc 3d at 892} "[A] defendant engaging in [witness tampering] will rarely do so openly, resorting instead to subterfuge" (People v Encarnacion, 87 AD3d 81, 87 [1st Dept 2011]). As such, the presentment agency may use "circumstantial evidence . . . to 'establish, in whole or in part, that a witness's unavailability was procured by the defendant' " (People v Cotto, 92 NY2d at 76, quoting People v Geraci, 85 NY2d at 369). Here, there is evidence presented that Michelle A. made various disclosures that she had been the victim of a prolonged history of domestic violence which included emotional and physical abuse as well as control and manipulation. Stephanie O., Michelle A.'s aunt, attested that Michelle A. had reported that a neighbor contacted her at request of respondent to not pursue the order of protection and that Michelle A. confided in her that she feared that she would lose her children and home if she stood up to respondent. Michelle A. also previously reported that respondent successfully had her hospitalized by portraying her as unstable when she sought to break the cycle of violence. Under these circumstances where there is alleged a long history of control and there is indication that respondent has continued to prey on Michelle A.'s vulnerabilities, her subsequent recantation of her statements warrants further consideration of whether respondent induced her to do so and whether her statements should be considered. Accordingly, petitioner's motion is granted to the extent of setting the matter down for a Sirois hearing on August 9, 2019, at 9:30 a.m. where petitioner shall have the burden to establish whether respondent's misconduct has induced the witness to recant her repeated prior statements regarding respondent's abuse of her.