S 1041. Required findings concerning notice. No factfinding hearing may commence under this article unless the court enters a finding: (a) that the parent or other person legally responsible for the child's care is present at the hearing and has been served with a copy of the petition; or (b) if the parent or other person legally responsible for the care of the child is not present, that every reasonable effort has been made to effect service under section ten hundred thirty-six or ten hundred thirty-seven. S 1042. Effect of absence of parent or other person responsible for care. If the parent or other person legally responsible for the child's care is not present, the court may proceed to hear a petition under this article only if the child is represented by counsel. The parent or other person legally responsible for the child's care shall be served with a copy of the order of disposition with written notice of its entry pursuant to section one thousand thirty-six of this article. Within one year of such service or substituted service pursuant to section one thousand thirty-six of this article, the parent or other person legally responsible for the child's care may move to vacate the order of disposition and schedule a rehearing. Such motion shall be granted on an affidavit showing such relationship or responsibility and a meritorious defense to the petition, unless the court finds that the parent or other person willfully refused to appear at the hearing, in which case the court may deny the motion. S 1043. Hearings not open to the public. The general public may be excluded from any hearing under this article and only such persons and the representatives of authorized agencies admitted thereto as have an interest in the case. S 1044. Definition of "fact-finding hearing". When used in this article, "fact-finding hearing" means a hearing to determine whether the child is an abused or neglected child as defined by this article. S 1045. Definition of "dispositional hearing". When used in this article, "dispositional hearing" means a hearing to determine what order of disposition should be made. S 1046. Evidence. (a) In any hearing under this article and article ten-A of this act: (i) proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent; and (ii) proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect, as the case may be, of the parent or other person legally responsible; and (iii) proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program; and (iv) any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital, or any other public or private agency and that it was in the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. A certification by the head of or by a responsible employee of the hospital or agency that the writing, record or photograph is the full and complete record of said condition, act, transaction, occurrence or event and that it was made in the regular course of the business of the hospital or agency and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification. A certification by someone other than the head of the hospital or agency shall be accompanied by a photocopy of a delegation of authority signed by both the head of the hospital or agency and by such other employee. All other circumstances of the making of the memorandum, record or photograph, including lack of personal knowledge of the maker, may be proved to affect its weight, but they shall not affect its admissibility; and (v) any report filed with the statewide central register of child abuse and maltreatment by a person or official required to do so pursuant to section four hundred thirteen of the social services law shall be admissible in evidence; and (vi) previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration. The testimony of the child shall not be necessary to make a fact-finding of abuse or neglect; and (vii) neither the privilege attaching to confidential communications between husband and wife, as set forth in section forty-five hundred two of the civil practice law and rules, nor the physician-patient and related privileges, as set forth in section forty-five hundred four of the civil practice law and rules, nor the psychologist-client privilege, as set forth in section forty-five hundred seven of the civil practice law and rules, nor the social worker-client privilege, as set forth in section forty-five hundred eight of the civil practice law and rules, nor the rape crisis counselor-client privilege, as set forth in section forty-five hundred ten of the civil practice law and rules, shall be a ground for excluding evidence which otherwise would be admissible. (viii) proof of the "impairment of emotional health" or "impairment of mental or emotional condition" as a result of the unwillingness or inability of the respondent to exercise a minimum degree of care toward a child may include competent opinion or expert testimony and may include proof that such impairment lessened during a period when the child was in the care, custody or supervision of a person or agency other than the respondent. (b) In a fact-finding hearing: (i) any determination that the child is an abused or neglected child must be based on a preponderance of evidence; (ii) whenever a determination of severe or repeated abuse is based upon clear and convincing evidence, the fact-finding order shall state that such determination is based on clear and convincing evidence; and (iii) except as otherwise provided by this article, only competent, material and relevant evidence may be admitted. (c) In a dispositional hearing and during all other stages of a proceeding under this article, except a fact-finding hearing, and in permanency hearings and all other proceedings under article ten-A of this act, only material and relevant evidence may be admitted. S 1047. Sequence of hearings. (a) Upon completion of the fact-finding hearing, the dispositional hearing may commence immediately after the required findings are made. (b) Reports prepared by the probation service or a duly authorized association, agency, society or institution for use by the court at any time for the making of an order of disposition shall be deemed confidential information furnished to the court which the court shall make available for inspection and copying by all counsel. The court may, in its discretion, withhold from disclosure, a part or parts of the reports which are not relevant to a proper disposition, or sources of information which have been obtained on a promise of confidentiality, or any other portion thereof, disclosure of which would not be in the interests of justice or in the best interests of the child. In all cases where a part or parts of the reports are not disclosed, the court shall state for the record that a part or parts of the reports have been excepted and the reasons for its action. The action of the court excepting information from disclosure shall be subject to review on appeal from the order of disposition. Such reports may not be furnished to the court prior to the completion of a fact-finding hearing, but may be used in a dispositional hearing. S 1048. Adjournments. (a) The court may adjourn a fact-finding hearing or a dispositional hearing for good cause shown on its own motion, or on motion of the corporation counsel, county attorney or district attorney, or on motion of the petitioner or on motion of the child or on his behalf or of the parent or other person legally responsible for the care of the child. If so requested by the parent or other person legally responsible for the care of the child, the court shall not proceed with a fact-finding hearing earlier than three days after service of summons and petition, unless emergency medical or surgical procedures are necessary to safeguard the life or health of the child. (b) At the conclusion of a fact-finding hearing and after the court has made findings required before a dispositional hearing may commence, the court may on its own motion or motion of the respondent, the petitioner or the child's attorney order a reasonable adjournment of the proceedings to enable the court to make inquiry into the surroundings, conditions and capacities of the persons involved in the proceedings. (c) Whenever a child has been remanded to the care of an agency or institution under section ten hundred fifty-one of this article, notice of any dispositional hearing shall be served upon the agency or institution with whom the child was placed and upon the agency supervising the care of the child on behalf of the agency with whom the child was placed. Service of notice of the adjourned hearing shall be made in such manner and on such notice as the court may, in its discretion, prescribe. Any such agency or institution served with notice pursuant to this subdivision may apply to the court for leave to be heard. S 1049. Special consideration in certain cases. In scheduling hearings and investigations, the court shall give priority to proceedings under this article involving abuse or in which a child has been removed from home before a final order of disposition. Any adjournment granted in the course of such a proceeding should be for as short a time as is practicable. Top of Page
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