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FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), PARENTAL NEGLECT AND DANGER FROM GANGS IN HONDURAS WAS DEMONSTRATED, APPELLATE COURT CAN MAKE ITS OWN FACTUAL FINDINGS ON A SUFFICIENT RECORD (SECOND DEPT).

The Second Department, reversing Family Court, determined the child’s motion for findings enabling him to petition for Special Immigrant Juvenile Status (SIJS) should have been granted:

“This Court’s power to review the evidence is as broad as that of the hearing court, and where, as here, the record is sufficiently complete to make our own factual determinations, we may do so” … . Based upon our independent factual review, we conclude that the record supports a finding that reunification of the child with one or both of his parents is not a viable option based upon parental neglect … . The record reflects that the child’s parents did not provide him with adequate supervision or medical care, and that they failed to meet the child’s educational needs. Furthermore, the record also supports a finding that it would not be in the best interests of the child to return to Honduras, his previous country of nationality or country of last habitual residence. The child indicated that he was assaulted by gang members in Honduras on multiple occasions, once leaving him with a broken rib and a scar on his head, and that he had witnessed a drive-by shooting at his school which resulted in the death of his schoolmate. In addition, the child stated that the gang members tried to recruit him, but he refused to join, and that the gang members were “killing people if they didn’t want to join.” The child stated that he “felt scared all the time and could no longer live a normal life,” and that he “basically stayed inside [his] house all the time” out of fear that he “was going to be attacked again” … . Matter of Victor R. C. O. v Canales, 2019 NY Slip Op 03789, Second Dept 5-15-19

 

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HERE THE PARTY WHO WAS AWARDED COSTS ON APPEAL WAS ENTITLED TO REIMBURSEMENT OF THE COST OF PROCURING THE TRANSCRIPTS FOR THE RECORD ON APPEAL (SECOND DEPT).
THE FACT THAT THE SCHOOL WAS AWARE OF THE PETITIONERS’ CHILD’S INJURY AT THE TIME IT OCCURRED DOES NOT MEAN THE SCHOOL HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT; PETITIONERS’ APPLICATION TO DEEM A LATE NOTICE OF CLAIM TIMELY SERVED SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
RESPONDENT, THE CHILDREN’S UNCLE WHO LIVED WITH THE CHILDREN’S FAMILY, WAS A FUNCTIONAL EQUIVALENT OF A PARENT AND SHOULD HAVE BEEN DEEMED A PERSON LEGALLY RESPONSIBLE FOR THE CHILDREN IN THIS SEXUAL ABUSE PROCEEDING (SECOND DEPT).
THE FIRST NOTICE OF CLAIM DEMANDED ONLY AN EXTENSION OF THE CONTRACTUAL TIME-LIMIT FOR COMPLETION OF THE PLUMBING CONTRACT; THE PURPORTED AMENDED NOTICE OF CLAIM DEMANDED $2.5 MILLION IN DAMAGES; THE AMENDMENT WAS NOT TECHNICAL IN NATURE AND THEREFORE THE MOTION TO AMEND WAS PROPERLY DENIED (SECOND DEPT).
THE FINDING THAT PETITIONER VIOLATED VEHICLE AND TRAFFIC LAW 1180 (d) (SPEEDING) WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; THE POLICE OFFICER DESCRIBED AN INCIDENT ON A DIFFERENT DATE AT THE HEARING (SECOND DEPT).
THE CAUSES OF ACTION FOR NEGLIGENT SUPERVISION (OF THE PLAINTIFF-STUDENT) AND NEGLIGENT FAILURE TO WARN (THE PLAINTIFF-STUDENT) SHOULD NOT HAVE BEEN DISMISSED IN THIS CHILD VICTIMS ACT CASE; THE COMPLAINT ALLEGED PLAINTIFF WAS SENT TO A PRIEST NOT EMPLOYED BY THE SCHOOL FOR DISCIPLINE AND WAS MOLESTED BY THE PRIEST (SECOND DEPT). ​
ALTHOUGH THE OPERATION OF THE KNIFE WAS DEMONSTRATED AT TRIAL, THERE WAS NO RECORD EVIDENCE THAT THE KNIFE POSSESSED BY DEFENDANT WAS A GRAVITY KNIFE, RELATED CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT).
DEFENDANT, AT THE PLEA PROCEEDINGS, WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION TO BE IMPOSED OR THE MAXIMUM WHICH COULD BE IMPOSED; GUILTY PLEA VACATED (SECOND DEPT).

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