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HEARSAY ALONE IS NOT ENOUGH TO SUPPORT REVOCATION OF PROBATION (FOURTH DEPT).

The Fourth Department, vacating the declaration of delinquency, determined the hearsay testimony of a police investigation was not sufficient to prove defendant violated the terms and conditions of a probationary sentence:

… [T]he evidence at the hearing that he committed a criminal offense while on probation consisted entirely of hearsay testimony from a police investigator. “While hearsay is admissible at a probation revocation hearing, hearsay alone does not satisfy the requirement that a finding of a probation violation must be based upon a preponderance of the evidence” … . Based on this record, we conclude that County Court’s determination “was based on hearsay alone and therefore cannot stand” … . People v Hawkey, 2025 NY Slip Op 00569, Fourth Dept 1-31-25

Practice Point: Hearsay is admissible at a probation revocation hearing, but hearsay alone will not support revocation.

 

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ALTHOUGH THE CHILD’S IMMIGRANT VISA HAD BEEN LOST, THE PROOF DEMONSTRATED THAT THE CHILD MUST HAVE BEEN ISSUED THE APPROPRIATE VISA AND THAT, THEREFORE, PETITIONER WAS ENTITLED TO REGISTRATION OF A FOREIGN ADOPTION AND AN ORDER OF ADOPTION FOR THE CHILD (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Ford, determined petitioner was entitled to registration of foreign adoption and an order of adoption for the child who was born in China based upon proof the child must have been admitted to the US with an IR-3 or IH-3 immigrant visa, which had been lost:

… [T]the petitioner, a New York resident, was unable to annex a copy of the child’s immigrant visa to the petition because it had been lost. However, the petitioner provided an affidavit averring that the child had been issued the relevant immigrant visa and a copy of the replacement Certificate of Citizenship, issued by USCIS, showing that the child became a United States citizen only nine days after her adoption. The record shows that the child would not have been able to automatically obtain a Certificate of Citizenship if she had not possessed the appropriate immigrant visa. Under these circumstances, we conclude that the foreign adoption order meets the requirements of Domestic Relations Law § 111-c(1), including the requirement that “the validity of the foreign adoption has been verified by the granting of an IR-3, IH-3, or a successor immigrant visa” (see id. § 111-c[1][b]). Indeed, to determine otherwise would defeat the intention of Domestic Relations Law § 111-c to protect adoptive families from unnecessary effort and expense. Matter of Lily, 2025 NY Slip Op 00448, Second Dept 1-29-25

Practice Point: Here, although the child’s immigrant visa has been lost, the proof demonstrated the child must have been issued the appropriate visa. Therefore the court should have issued a registration of foreign adoption and an order of adoption for the child (born in China).

 

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ALTHOUGH A JUDGE HAS THE DISCRETION TO PROHIBIT A PARTY FROM BRINGING ANY FURTHER PETITIONS FOR CUSTODY MODIFICATION, HERE FAMILY COURT ABUSED ITS DISCRETION; FATHER HAD NEVER FILED FRIVOLOUS PETITIONS OR FILED PETITIONS OUT OF ILL WILL OR SPITE (SECOND DEPT). ​

The Second Department, modifying Family Court, determined Family Court should not have prohibited father from filing any further custody modification petitions because father had not filed frivolous petitions or filed petitions out of ill will or spite:

Family Court improvidently exercised its discretion in prohibiting the father from filing any further modification petitions without the permission of the court. “While public policy generally mandates free access to the courts, a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will” … . Here, there is no basis in the record to demonstrate that the father filed frivolous petitions or filed petitions out of ill will or spite … . Matter of Freyer v Macruari, 2025 NY Slip Op 00217, Second Dept 1-15-25

Practice Point: Family Court has the discretion to prohibit a party from bringing any future custody modification petitions, it can only do so where the party has filed frivolous motions or has filed motions out of ill will or spite.

 

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HERE THE PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DISMISSED “WITH PREJUDICE” BECAUSE A FUTURE CHANGE IN CIRCUMSTANCES MAY WARRANT MODIFICATION (SECOND DEPT).

The Second Department, modifying Family Court, determined mother’s petition for a modification of custody should not have been dismissed “with prejudice” because a future change in circumstances could warrant modification:

Family Court should not have provided that its dismissal of the mother’s petitions was with prejudice. This language could create confusion as to whether the mother could seek relief based upon a change in circumstances. Therefore, we delete that provision of the order appealed from and substitute therefor a provision dismissing the petitions without prejudice … . We note that child custody and parental access orders are not entitled to res judicata effect and are subject to modification based upon a showing of a change in circumstances. Thus, a new petition may be filed where there has been a sufficient change in circumstances since the order or judgment sought to be modified was made … . Matter of Blackman v Barge, 2025 NY Slip Op 00214, Second Dept 1-15-25

Practice Point: Here the petition for modification of custody should not have been dismissed “with prejudice” because a future change in circumstances may warrant modification.

 

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COUNSELING OR TREATMENT SHOULD NOT BE MADE A CONDITION FOR ANY FUTURE MODIFICATION OF PARENTAL ACCESS; HOWEVER COUNSELING AND TREATMENT MAY BE MADE A COMPONENT OF CURRENT PARENTAL ACCESS (SECOND DEPT).

The Second Department, modifying Family Court, determined the court should not have made counseling or treatment a condition for any future modification of parental access, but Family Court appropriately directed mother to submit to treatment as a component of her current parental access:

… [A] “court deciding a custody proceeding may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order” … . “However, a court may not direct that a parent undergo counseling or treatment as a condition of future parental access or reapplication for parental access rights” … . Here, the Family Court should not have conditioned any future modification of the mother’s parental access with the child, in effect, upon her enrollment in mental health treatment and her resulting improvement in mental status, emotional regulation, psychological functioning, and empathy for the child … . Nonetheless, to the extent the court directed the mother to submit to such treatment as a component of her parental access, this was proper … . Matter of Nathaniel v Mauvais, 2025 NY Slip Op 00223, Second Dept 1-15-257

Practice Point: Counseling or treatment can be made a component of current parental access but cannot be made a condition for any future modification of parental access.

 

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THE PETITION FOR GUARDIANSHIP OF THE CHILD SHOULD NOT HAVE BEEN DISMISSED BECAUSE PETITIONER IS NOT RELATED TO THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the petition for guardianship of the child should not have been dismissed on the ground petitioner was not a relative. The applicable provision of the Surrogate’s Court Procedure Act (SCPA 1703) states the petition can be brought by “any person:”

​Although the petitioner is not biologically related to the child, SCPA 1703, which is applicable to this proceeding (see Family Ct Act § 661), provides that a petition for the appointment of a guardian may be brought by “any person” (SCPA 1703 …). Nor was there any basis in the record to dismiss the petition with prejudice … .  Matter of Karma-Marie W. (Jerry W.), 2025 NY Slip Op 00104, Second Dept 1-8-25

Practice Point: Pursuant to SCPA 1703 “any person” may petition for guardianship of a child. There is no requirement that petitioner be related to the child.

 

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A MINOR INJURY TO ONE CHILD BY ANOTHER WHILE MOTHER WAS NAPPING NEARBY, AND A SUBSEQUENT VERBAL ARGUMENT WITH THE POLICE, DID NOT AMOUNT TO NEGLECT BY MOTHER (FIRST DEPT).

The First Department, reversing Family Court, determined the single incident in which one child injured another while mother was napping and a subsequent verbal argument with the police did not amount to neglect:

Petitioner failed to show by a preponderance of the evidence that a minor accident involving two of the children while the mother was napping constituted neglect. The agency’s proof that the brother had a minor injury to his neck after an isolated incident did not establish that the child’s mental or emotional condition was impaired or in imminent danger of being impaired as a result of the incident, or that the mother failed to exercise a minimum degree of care … . Indeed, the brother was without any visible injury shortly after the incident. Nor did the incident cause any impairment or imminent danger to the daughter or to the baby, who was asleep in the next room. Although an isolated accidental injury may constitute neglect if the parent was aware of an intrinsically dangerous situation … , there is no evidence that the mother’s napping while the children were in close proximity and within earshot was intrinsically dangerous.

Similarly, Family Court’s finding that the mother’s interaction with the police in any respect rose to the level of neglect is not supported by a preponderance of the evidence. A verbal argument with a police officer did not pose any serious or potentially serious harm to the infant child, who was the only child with her at that time … . Matter of Rebecca F. (Danequea J.), 2025 NY Slip Op 00042, First Dept 1-7-25

Practice Point: One child inflicted a minor injury on another while mother was napping nearby. Subsequently mother argued with the police when she was not allowed back in the apartment to get her cell phone charger. These incidents did not support Family Court’s neglect finding.

 

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REMOVAL OF THE CHILDREN FROM MOTHER’S CARE WITHOUT NOTICE DEPRIVED MOTHER OF HER RIGHT TO DUE PROCESS; THE EVIDENCE DID NOT SUPPORT REMOVAL OF THE CHILDREN (FIRST DEPT).

The First Department, reversing Family Court, determined the removal of the children from mother’s care without notice violated mother’s due process rights. In addition, the evidence did not support the removal:

… [P]ursuant to a dispositional order, the children were released to their mother’s care with ACS [Commissioner of the Administration for Children’s Services] supervision. ACS moved pursuant to Family Court Act § 1061 to extend the period of supervision. Family Court violated the mother’s due process rights when, on the return date of the motion, it sua sponte removed the children without giving the mother notice or an opportunity to be heard and, at a later hearing, effectively imposed upon the mother the burden of showing that the removal was unwarranted … . There was nothing in the language of the agency’s motion to put the mother on notice that the children might be removed from her care on the return date, and the record demonstrates that the mother was not given a meaningful opportunity to be heard on the issue … . Moreover, the agency maintained that it was in the children’s best interests to remain with the mother, and the children’s attorney supported the agency’s position.

Furthermore, Family Court’s decision to continue the children’s placement in the agency’s care until the next placement hearing was not supported by a sound and substantial basis in the record …  Contrary to the court’s conclusion, neither the initial neglect petition nor the order to show cause alleged that the mother used illicit substances or was impaired while taking care of the children. Moreover, during the 10-month period of supervision in 2023—2024, the mother submitted to at least three random drug screenings and tested negative for all illicit substances. When the mother underwent an evaluation by a credentialed alcohol and substance abuse counselor on February 1, 2024, she was not found to need any drug treatment services. Matter of E.I. (Eboniqua M.), 2025 NY Slip Op 00022, First Dept 1-2-25

Practice Point: Here removal of the children from mother’s care without prior notice to mother violated her due process rights. Removal was not supported by the evidence.

 

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HERE A SINGLE INCIDENT OF ALLEGED EXCESSIVE CORPORAL PUNISHMENT (GRABBING THE CHILD’S ARM AND SQUEEZING TIGHTLY) WAS NOT SUFFICIENT TO SUPPORT THE NEGLECT FINDING; A NEGLECT FINDING CANNOT BE BASED UPON ALLEGATIONS NOT INCLUDED IN THE PETITION (SECOND DEPT).

The Second Department, reversing Family Court’s neglect finding and dismissing the petition, in a full-fledged opinion by Justice Voutsinas, determined the evidence of a single incident of alleged excessive corporal punishment (grabbing the child’s arm and squeezing it tightly) was not enough. The Second Department further noted that a neglect finding cannot be based on allegations not included in the petition:

This appeal concerns a finding of neglect against a parent in a proceeding pursuant to Family Court Act article 10, based upon an alleged incident of excessive corporal punishment. This appeal does not present us with an opportunity to resolve a novel legal question. It does, however, provide us with an opportunity to provide some guidance with regard to when a single incident of excessive corporal punishment may be sufficient to support a finding of neglect. This appeal also presents us with the opportunity to emphasize that a finding of neglect must be based on evidence establishing the allegations set forth in the petition before the court. Absent additional allegations set forth in an amended petition that conforms to the proof with notice to the respondent, the court must not base a finding of neglect on allegations not set forth in the petition. * * *

The petition alleged, more specifically, that on or about June 7, 2021, the father had grabbed the child’s arm and squeezed it “really, really hard,” leaving “three circular, dark green marks” on the child’s shoulder, which appeared to be the size of finger prints.” The petition did not contain any allegations that the father had engaged in any other acts of aggression toward the child or regarding any misuse of alcohol. Matter of Elina M. (Leonard M.), 2024 NY Slip Op 06574, Second Dept 12-24-24

Practice Point: Consult this comprehensive opinion for a discussion of when a neglect finding can be based upon a single incident of alleged excessive corporal punishment.

 

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IN THIS JUVENILE DELINQUENCY PROCEEDING, THE JUVENILE’S BEHAVIOR—LOOKING AT THE UNDERCOVER VEHICLE AND TURNING HIS BICYCLE AROUND—DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION JUSTIFYING THE STREET STOP (FIRST DEPT). ​

The First Department, reversing Family Court’s finding there was reasonable suspicion justifying the street stop of the juvenile, determined the officers’ observation of the juvenile’s “look[ing] in the direction of one of the unmarked vehicles, back pedal[ing], duck[ing], turn[ing] the bicycle around and rid[ing] in the opposite direction” was not sufficient. The police had been alerted to a gunshot in the area. A handgun was retrieved from the juvenile:

… [T]he totality of the circumstances did not support Family Court’s finding that the officer had reasonable suspicion to justify the stop, and his detention was unlawful because appellant’s “equivocal or innocuous behavior” was “susceptible of an innocent as well as a culpable interpretation” … . Police, in two unmarked vehicles, while canvassing the area in response to a “Shotspotter” sensor report of shots fired, observed appellant riding a bicycle on the sidewalk. An officer observed appellant look in the direction of one of the unmarked vehicles, back pedal, duck, turn the bicycle around and ride in the opposite direction. The officer found appellant’s actions suspicious, exited the vehicle, approached appellant, ordered him to stop, grabbed him by both wrists and pushed him against the wall. While appellant was detained another officer observed a bulge in appellant’s pocket, squeezed the pocket area and retrieved a firearm.

Although an officer observed an L-shaped object in appellant’s pocket during the detention, there is no evidence or any reasonable inference that the officer “was in a position to view the contraband absent the unlawful detention” … . Matter of W.P., 2024 NY Slip Op 06426, First Dept 12-19-24

Practice Point: Here the police were canvassing the area after a report of a gunshot. They stopped the juvenile after observing him look at their undercover vehicle and turn his bicycle around. A handgun was retrieved during the stop. The First Department held the observations did not provide the police with “reasonable suspicion” and the street stop was therefore not justified.

 

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