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IN RE: BRIAN R., A Child Under Eighteen Years of Age Alleged to be Neglected by v. Joel V., Respondent.

No. NN–23087/14.

Decided: March 27, 2015

In this child protective proceeding, the Respondent Mr. V. is alleged to have physically abused the non-respondent mother on multiple occasions in the presence of her 2 year-old child. In a Notice of Motion dated February 26, 2015, The Administration for Children's Services (“ACS”) has moved in this Court to allow out-of-court statements made by the non-respondent mother to law enforcement, preventive service workers and ACS personnel to be admitted into evidence at the Fact-finding hearing in this case. ACS makes this request based on allegations in their Motion and an attached affidavit from the Child Protective Specialist, that the non-respondent mother is no longer willing to testify in this matter due to threats she has received from the respondent and his family members to harm her and her children. As a result, according to the Petitioner's motion, the non-respondent mother has made statements to ACS caseworkers and others on or about September 8, 2014 (the day before the underlying petition was filed) that she is in fear for her safety and that of her children if she were to be called as a witness. Since the non-respondent mother's testimony is critical to ACS's case against the Respondent, the Petitioner will unlikely be able to proceed in this matter without the non-respondent mother's out-of-court statements being admitted.

As authority for their request, Petitioner cited the Sirois line of cases in the criminal context, where courts have allowed out-of-court statements of a witness that would otherwise be hearsay to come into evidence at trial after a pre-trial “Sirois ” hearing on whether the defendant's misconduct was responsible for the witness's unavailability. See People v. Sirois, 92 A.D.2d 618 (2nd Dept.1983); Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 415 (2nd Dept.1983).

Counsel for the Respondent served an Affirmation in Opposition to the Commissioner's Notice of Motion on March 9, 2015, opposing both the request for the admission of the statements and the holding of a pre-trial “Sirois ”—type hearing. On March 11, 2015, the Attorney for the Child submitted an Affirmation in Support of Commissioner's Notice of Motion and counsel for ACS submitted a Reply Affirmation, and the Court held oral argument with all counsel present that same date. The Court then reserved decision on the Motion.

The rationale behind the Sirois doctrine in Criminal Court is equally applicable in Family Court Article 10 proceedings, namely that “the law will not allow a person to take advantage of his own wrong.” People v. Geraci, 85 N.Y.2d 359, 366 (1995), quoting U.S. v. Mastrangelo, 693 F.2d 269, 273 (1982) and Diaz v. United States, 223 U.S. 442 (1912). “The rule is invoked to protect the integrity of the adversary process by deterring litigants from acting on strong incentives to prevent the testimony of an adverse witness.” Id. quoting Steele v. Taylor, 684 F.2d 1193, cert. den., 469 U.S. 918. If a court finds that the defendant has procured a witness's unavailability by his or her own wrongdoing, the defendant then forfeits any constitutional or evidentiary right to exclusion of out-of-court statements. See People v. Geraci, supra at 366. The use of the Sirois doctrine has been upheld in criminal proceedings despite the significant Confrontation Clause rights that apply. See, e.g., People v. Smart, 23 NY3d 213, 214–15 (2014); People v. Cotto, 92 N.Y.2d 68, 75–6 (1998). While due process protections are in place for respondents in Family Court child protective proceedings, the right of confrontation is not constitutionally mandated in these and other civil proceedings. See Matter of Nicole V, 71 N.Y.2d 112, 117–18 (1987); People v. Geraci, supra, at 367. In Article 10 specifically, there are a number of evidentiary provisions, such as FCA § 1046(a)(vi) allowing the admission of the out-of-court statements of children, that demonstrate the Legislature's intention to balance the parent's right to due process with the statutory purpose of “protect[ing] children from injury or mistreatment and help[ing to] safeguard their physical, mental and emotional well-being.” FCA § 1011. Finally, the Sirois analysis has been applied both to sworn testimony and to unsworn out-of-court statements like those the Petitioner seeks to introduce in this case. People v. Cotto, supra at 398–99.

The standard for the granting of a Sirois hearing is where “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, supra at 415, quoting United States v. Mastrangelo, supra at 952. See also People v. Cotto, supra at 72 (1998).

The Court finds that the Petitioner ACS has satisfied this threshold standard in recounting the alleged threats by the respondent and his family members and the violations of the orders of protection that are set forth in its motion papers. The request for a pre-trial hearing on the issue of the admissibility of the non-respondent mother's out-of-court statements at the fact-finding hearing is therefore granted.

The hearing will address the following issues: (1) whether the non-respondent mother is “unavailable” for purposes of a Sirois type analysis; (2) whether the non-respondent mother's unavailability was procured by the misconduct of the respondent; and, alternatively, (3) whether any of the out-of-court statements satisfy the requirements for admission through the “excited utterance” hearsay exception. The burden of proof at this hearing will be on the Petitioner to establish either or both exceptions by a fair preponderance of the evidence, as that is the standard of proof applicable in Article 10 proceedings, FCA § 1046(b).

Although the Sirois line of cases applies the higher “clear and convincing” evidence standard, that more exacting standard is appropriate to criminal proceedings, where the burden of proof is “beyond a reasonable doubt” and the U.S. Constitution's Sixth Amendment Confrontation Clause requirements are applicable.1

WHEREFORE, the Petitioner's motion is granted to the extent that a Sirois hearing is ordered. Notify parties. The pre-trial hearing will be scheduled for the existing adjourn date of May 7, 2015 at 2:30 pm. Counsel for ACS is to provide a witness and exhibit list for both the pre-trial and fact-finding hearings to opposing counsel in 5 days and attorneys for the Respondent and the Child will provide their witness and exhibit lists to other counsel 3 days later.


1.  It is worth noting that the burden of proof issue has been resolved differently in the Federal Criminal system, where every Circuit other than the 5th Circuit applies the less onerous “preponderance of the evidence” standard. People v. Geraci, supra, at 366–67. See Brown v. Epps, 686 F.3d 281 (5th Cir.2012) (clear and convincing evidence standard); U.S. v. Houlihan, 92 F.3d 1271 (1st Cir.1996); U.S. v. Dhinsa, 243 F.3d 635 (2nd Cir.2001); U.S. v. Savage, 2013 WL 372947 (E.D.P.A.2013) (there are no Court of Appeals cases from the 3d Circuit); U.S. v. Gray, 405 F.3d 227 (4th Cir.2005); U.S. v. Warman, 578 F.3d (6th Cir.2009); U.S. v. Scott, 284 F.3d 758 (7th Cir.2002); U.S. v. Emery, 186 F.3d 921 (8th Cir.1999); U.S. v. Johnson, 767 F.3d 815 (9th Cir.2014); U.S. v. Cherry, 217 F.3d 811 (10th Cir.2000); U.S. v. Zlatogur, 271 F .3d 1025 (11th Cir.2001) (preponderance of the evidence standard).