In the Matter of FM, HB, HB, Children under Eighteen Years of Age Alleged to be Neglected by WB, RespondentIn the Matter of a Family Offense Proceeding Pursuant to Family Court Article Eight AM on behalf of HB, FM, and HB, Petitioner, against WB, Respondent 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 is 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 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 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, 719 N.Y.S.2d 90 [2nd Dept. 2001]), compared to severance, which contemplates separate trials (see, County of Chenango Indus. Dev. Agency v. Lockwood Greene Eng’rs, 111 AD2d 508, 488 N.Y.S2d 890 [3rd 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 [*2]proceedings instituted under Domestic Relations Law §§70 and 240, where the “gravaman of [the petitions] involves child abuse,” but still require corroboration (see, Matter of Le Favour v. Koch, 124 AD2d 903, 906, 508 N.Y.S.2d 320 [3rd Dept. 1986]). The exception also applies in custody proceedings under Family Court Act Article 6 based upon allegations of child abuse (see, Matter of Hover v. Shear, 232 AD2d 749, 750, 648 N.Y.S.2d 718 [3rd Dept. 1996]; Rosario WW v. Ellen WW, 309 AD2d 984, 987, 765 N.Y.S.2d 710 [3rd 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, 34 N.Y.S.3d 771 [3rd 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), 859 N.Y.S.2d 904 [NY Fam. Ct. 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, In re Trustco Bank (Lally), 33 Misc 3d 745, 751, 929 N.Y.S.2d 707 [NY County Ct. 2011]). Even if the parameters of their participation in the Family Offense proceeding was 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 herebyORDERED AND ADJUDGED that the motion is denied and dismissed.Dated: July 31, 2018Cooperstown, New York
