N.Y. Family Court Act § 1046: Evidence

§ 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. Provided however, the sole fact that an individual consumes

cannabis, without a separate finding that the child's physical mental or

emotional condition was impaired or is in imminent danger of becoming

impaired established by a fair preponderance of the evidence shall not

be sufficient to establish prima facie evidence of neglect; 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.