Secured Reversal Of Child Neglect Determination Where Family Court Improperly Relied Upon Prior Testimony Of Case Worker

Matter of Louie L. V. (Virzhiniya T. V.), 176 AD3d 1081 (2nd Dept 2019)

In this child neglect matter, I secured a reversal of a finding of neglect on behalf of my client, the mother of the child.  The Second Department accepted my argument that Family Court should not have admitted into evidence at the fact-finding hearing transcripts of testimony from the hearing conducted pursuant to Family Court Act § 1028.  The caseworker’s testimony at the prior hearing, which included hearsay statements, actually formed the basis of the court’s neglect finding at the subsequent fact-finding hearing.  I argued that pursuant to CPLR 4517(a)(3), prior trial testimony of a witness may be used by any party for any purpose against another party if the court finds that such witness is dead or otherwise unavailable. In this matter, the Family Court made no such finding. The Second Department there concluded that the court’s error in admitting the prior testimony into evidence on ACS’s direct case without first determining that the witness was unavailable prejudiced the mother and cannot be deemed harmless

http://www.nycourts.gov/reporter/3dseries/2019/2019_07592.htm