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CHILD’S STATEMENTS ABOUT RESPONDENT PROPERLY EXCLUDED FROM NEGLECT PROCEEDING INVOLVING A DIFFERENT CHILD, NO SHOWING RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD WHO MADE THE STATEMENTS.

The Second Department determined Family Court properly dismissed the neglect petition without prejudice. The petitioner failed to establish the respondent father was legally responsible for the child whose statements petitioner sought to use as evidence. (The neglect proceedings did not involve the child who made the statements):

Here, the petitioner failed to establish by a preponderance of the evidence … . At the fact-finding hearing, the petitioner presented a caseworker as its only witness and documentation of the father’s criminal offenses. The caseworker testified to previous statements allegedly made to her by a child complainant in one of the respondent’s prior criminal cases. Family Court Act § 1046(a)(vi) provides that “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence” (Family Ct Act § 1046[a][vi]). Such statements are admissible in a child protective proceeding, even when the child is not the subject of the proceeding … . However, child protective proceedings encompass only abuse or neglect by a person who is a parent or other person legally responsible for the child’s care … , and the sections regarding admissibility of previous statements of an abused or neglected child refer to a child in the care of the respondent … .

A person legally responsible includes a custodian of the child, which “may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child” … . In determining whether a respondent is such a custodian, the court should consider the particular circumstances, including “the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s)”… . A person legally responsible is not a caregiver who has fleeting or temporary care of a child, such as a supervisor of a play date … .

Here, the petitioner failed to establish that the respondent was a person legally responsible for the child whose statements it wished to introduce through the testimony of the caseworker … . Matter of Kaliia F. (Jason F.), 2017 NY Slip Op 01691, 2nd Dept 3-8-17

 

FAMILY LAW (CHILD’S STATEMENTS ABOUT RESPONDENT PROPERLY EXCLUDED FROM NEGLECT PROCEEDING INVOLVING A DIFFERENT CHILD, NO SHOWING RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD WHO MADE THE STATEMENTS)/EVIDENCE (FAMILY LAW, (CHILD’S STATEMENTS ABOUT RESPONDENT PROPERLY EXCLUDED FROM NEGLECT PROCEEDING INVOLVING A DIFFERENT CHILD, NO SHOWING RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD WHO MADE THE STATEMENTS)/HEARSAY (FAMILY LAW, (CHILD’S STATEMENTS ABOUT RESPONDENT PROPERLY EXCLUDED FROM NEGLECT PROCEEDING INVOLVING A DIFFERENT CHILD, NO SHOWING RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD WHO MADE THE STATEMENTS)

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NOT NECSSARY TO PROVE WHICH OF TWO CARETAKERS WITH ACCESS TO THE CHILD ACTUALLY INJURED THE CHILD.

The Second Department determined Family Court properly found both mother and caretaker responsible for child abuse. It was not necessary to prove which of the two caused injury to the child:

The Family Court Act defines an abused child, inter alia, as a child whose parent, or other person legally responsible for his or her care, “(i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ or (ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause [such injury]” … . Family Court Act § 1046(a)(ii) provides that a prima facie case of child abuse or neglect may be established by evidence of (1) an injury to a child that would ordinarily not occur absent an act or omission of the respondents, and (2) that the respondents were the caretakers of the child at the time the injury occurred … . “A parent who stands by while others inflict harm may be found responsible for that harm” … .

Section 1046(a)(ii) “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” … . The statute also permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred … . In such cases, the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together … . Matter of Zoey D. (Simona D.), 2017 NY Slip Op 01689, 2nd Dept 3-8-17

 

FAMILY LAW (NOT NECSSARY TO PROVE WHICH OF TWO CARETAKERS WITH ACCESS TO THE CHILD ACTUALLY INJURED THE CHILD)/EVIDENCE (FAMILY LAW, CHILD ABUSE, NOT NECSSARY TO PROVE WHICH OF TWO CARETAKERS WITH ACCESS TO THE CHILD ACTUALLY INJURED THE CHILD)/CHILD ABUSE (NOT NECSSARY TO PROVE WHICH OF TWO CARETAKERS WITH ACCESS TO THE CHILD ACTUALLY INJURED THE CHILD)

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ALTHOUGH NONE OF THE THREE CHILDREN TESTIFIED IN THIS NEGLECT CASE, THE STATEMENTS ATTRIBUTED TO THEM CROSS-CORROBORATED ONE ANOTHER AND WERE THEREFORE ADMISSIBLE.

The Third Department determined that, although none of the three children testified in this child neglect case, the children’s statements about the domestic violence witnessed by them were admissible because the statements were cross-corroborated:

“While the mere repetition of an accusation by a child is insufficient to corroborate the child’s prior account of abuse or neglect” … , “independent statements by children requiring corroboration may corroborate each other” … . * * *

… [W]e find that, although none of the children testified, their out-of-court statements sufficiently cross-corroborated one another … . Matter of Annarae I. (Jennifer K.), 2017 NY Slip Op 01605, 3rd Dept 3-2-17

 

FAMILY LAW (ALTHOUGH NONE OF THE THREE CHILDREN TESTIFIED IN THIS NEGLECT CASE, THE STATEMENTS ATTRIBUTED TO THEM CROSS-CORROBORATED ONE ANOTHER AND WERE THEREFORE ADMISSIBLE)/EVIDENCE (FAMILY LAW, ALTHOUGH NONE OF THE THREE CHILDREN TESTIFIED IN THIS NEGLECT CASE, THE STATEMENTS ATTRIBUTED TO THEM CROSS-CORROBORATED ONE ANOTHER AND WERE THEREFORE ADMISSIBLE)/HEARSAY (ALTHOUGH NONE OF THE THREE CHILDREN TESTIFIED IN THIS NEGLECT CASE, THE STATEMENTS ATTRIBUTED TO THEM CROSS-CORROBORATED ONE ANOTHER AND WERE THEREFORE ADMISSIBLE)

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VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION; EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT.

The First Department, over an extensive dissent, determined Family Court properly issued a final order of protection after respondent’s violation of a temporary order of protection. The court noted that the expiration of the order of protection did not render the appeal moot because the order “still imposes significant enduring consequences upon respondent…”. The dissent argued that a final order of protection cannot be issued unless a family offense has been committed:

Here, the Family Court found, on the record after a hearing, that respondent had willfully violated the temporary order of protection with his April 3, 2014 emails containing statements clearly intended to harass petitioner. As a result of this determination, the Family Court conducted a dispositional hearing on respondent’s violation of the temporary order of protection, and thereafter issued a new order of protection. The Family Court adhered to the prescribed procedure and did not exceed its jurisdiction by issuing this final order of protection. * * * … [W]e read Family Court Act § 846-a as prescribing the remedies available to the court when a respondent violates a temporary order of protection, which is what is at issue here. Matter of Lisa T. v King E.T., 2017 NY Slip Op 01487, 1st Dept 2-28-17

FAMILY LAW (VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION, EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT)/ORDER OF PROTECTION (FAMILY LAW, VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION, EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT)/APPEALS (FAMILY LAW, VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION, EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT)

ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER’S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING.

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissenting opinion, determined Family Court properly found mother had neglected her child. The child was not harmed by the mother. There was evidence the mother suffered from delusions:

A neglected child is one whose “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent . . . to exercise a minimum degree of care” … . It is well settled that “[a] respondent’s mental condition may form the basis of a finding of neglect if it is shown by a preponderance of the evidence that his or her condition resulted in imminent danger to the child[]” … .

In this case, the mother presented a risk of harm to her child through her unfounded fears that her daughter had been raped, since these fears resulted in the mother on different occasions “testing” the child to see if she was raped, by checking her diaper and by sticking a Q-tip inside her, and making an unnecessary trip to the hospital … .

Further, the mother displayed a “lack of insight” into her illness by refusing to agree that she had any mental health condition, despite her diagnoses, and by repeatedly refusing to comply with her medication regimen … .

Significantly, lack of evidence as to actual injury to the child is inconsequential. “A showing that [the child was] impaired by [the mother’s] failure to exercise a minimum degree of care is not required for an adjudication of neglect; it is sufficient that [the child was] in imminent danger of becoming impaired'” … .Indeed, the imminent danger standard exists specifically to protect children who have not yet been harmed and to prevent impairment … .

With regard to mental illness, we have previously found that a parent suffering from untreated paranoid delusions presents an imminent risk of harm to children who are placed in her care … . * * *

The neglect finding was not based only on the mother’s mental illness. Rather, it was based on her mental condition in conjunction with her failure to comply with her medication regimen and follow-up treatment, and the fact that her mental illness impaired her ability to care for her infant daughter, and caused her to keep unnecessarily checking her daughter for evidence of rape. Matter of Ruth Joanna O.O. (Melissa O.), 2017 NY Slip Op 01524, 1st Dept 2-28-17

 

FAMILY LAW (NEGLECT, ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER’S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING)/NEGLECT (NEGLECT, ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER’S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING)/MENTAL ILLNESS (FAMILY LAW, NEGLECT, ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER’S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING)

REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED.

The Third Department, in a full-fledged opinion by Justice Garry, determined petitioner-mother’s application to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged should have been granted. The finding of inadequate guardianship was based on two incidents where the petitioner was abused by her paramour in the presence of a child. Three days after the latest incident petitioner reported the abuse to the police and the paramour was taken into custody. The Third Department held that, under the circumstances of the abuse targeting petitioner, petitioner acted reasonably to protect her children:

… [A]ddressing petitioner’s brief delay in reporting the abuse, it is well recognized that the most dangerous time in an abusive relationship occurs when the victim attempts to separate from the abuser … . * * * A finding that petitioner failed to exercise a minimum degree of care cannot be supported where the record reveals that she acted reasonably under the circumstances and thoughtfully planned a strategy to report her paramour’s abuse in such a way as to protect her own safety and that of her children … . * * *

…[W]e find no basis in the record to support respondent’s finding that petitioner’s actions resulted in impairment or immediate danger to the children. A finding of impairment “requires proof of actual (or imminent danger of) physical, emotional or mental impairment to the child” … . An immediate danger must be “near or impending” and more than “merely possible” … . Although the record supports a finding that the youngest child was placed in immediate danger during both incidents and that the eldest child suffered emotional impairment after witnessing the second incident, neither the danger nor the impairment were the consequence of petitioner’s actions. As a result of petitioner’s actions shortly thereafter, the paramour was incarcerated and an order of protection was issued; these circumstances continued through the time of the hearing. Matter of Elizabeth B. v New York State Off. of Children & Family Servs., 2017 NY Slip Op 01424, 3rd Dept 2-23-17

 

FAMILY LAW (REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED)/CHILD ABUSE (REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED)/CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT (REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED)

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FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT.

The Third Department determined a sentence of incarceration for father’s willful failure to pay child support was proper. However, because the support was paid by father prior to sentencing, Family Court abused its discretion by issuing the order of commitment:

Upon a willful violation, Family Court is authorized to impose a sentence of incarceration of up to six months … . Such a sentence is in the nature of a civil contempt, which “may only continue until such time as the offender, if it is within his or her power, complies with the support order” … . Since respondent cured the default prior to sentencing, we conclude that Family Court abused its discretion by issuing the order of commitment. Matter of Provost v Provost, 2017 NY Slip Op 01422, 3rd Dept 2-23-17

FAMILY LAW (FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT)/CHILD SUPPORT (FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT)

UPON REVERSAL OF MOTHER’S MURDER AND MANSLAUGHTER CONVICTIONS, MOTHER ENTITLED TO NEW DISPOSITIONAL HEARING ON TERMINATION OF HER PARENTAL RIGHTS.

The Third Department determined respondent mother was entitled to a new dispositional hearing on termination of her parental rights. At the time of the prior hearing she was facing a long incarceration for murder and manslaughter. However, those convictions were subsequently reversed:

Remittal is … required for a new dispositional hearing. Upon appeal from respondent’s criminal conviction, this Court modified the judgment of conviction by reversing her murder and manslaughter convictions and dismissing the underlying counts of the indictment. Respondent is accordingly not facing the lengthy term of imprisonment anticipated at the time the dispositional order was issued and, as such, it is unclear whether the best interests of the children continue to demand the termination of her parental rights. Thus, we agree with petitioner and respondent that a new dispositional hearing is required … . Matter of Zoey O. (Veronica O.), 2017 NY Slip Op 01413, 3rd Dept 2-23-17

FAMILY LAW (UPON REVERSAL OF MOTHER’S MURDER AND MANSLAUGHTER CONVICTIONS, MOTHER ENTITLED TO NEW DISPOSITIONAL HEARING ON TERMINATION OF HER PARENTAL RIGHTS)/PARENTAL RIGHTS (UPON REVERSAL OF MOTHER’S MURDER AND MANSLAUGHTER CONVICTIONS, MOTHER ENTITLED TO NEW DISPOSITIONAL HEARING ON TERMINATION OF HER PARENTAL RIGHTS)

WIFE ENTITLED TO A PERCENTAGE OF HUSBAND’S ENHANCED EARNING CAPACITY BY ENABLING HUSBAND’S LONG WORKING HOURS AND HIS STUDY FOR MEDICAL BOARD EXAMS.

The First Department determined defendant wife was properly awarded a percentage of plaintiff husband’s enhanced earning capacity related to his medical license. Husband worked long hours and unpopular shifts as an anesthesiologist to earn double the average salary of his peers—over $800,000 per year at one point. Wife enabled husband’s intense work schedule by caring for the children and home. [The decision is extensive and covers many issues not summarized here]:

The party seeking distribution of an award based on the other party’s enhanced earning capacity must establish its value through expert testimony … . Defendant’s expert used a methodology that is commonly used when calculating the value of enhanced earning capacity … . Plaintiff’s disagreement with certain assumptions made by the expert was not a basis to simply disregard the expert’s opinion and treat it as a complete nullity. Some of plaintiff’s criticisms resulted in adjustments in value at trial. * * *

The court … properly exercised its discretion in making a distributive award equal to 10% of plaintiff’s enhanced earnings … . It is well-established law that both parties in a matrimonial action are entitled to “fundamental fairness in the allocation of marital assets, and that the economic and noneconomic contributions of each spouse are to be taken into account” …. . In reaching its decision the court below considered the statutory factors listed in Domestic Relations Law § 236, as well as the nontitled defendant spouse’s direct and/or indirect contributions to the marriage … .

… [P]laintiff was earning almost twice as much as other … doctors [in the firm] because he worked extraordinarily long hours, accepted unpopular shifts, like holidays, weekends and evenings, and was better compensated precisely because plaintiff kept this “totally unbalanced life.” By not adhering to a more balanced work schedule, plaintiff necessarily shifted primary responsibility for his home life to defendant. Although he may have borne equal, if not primary, responsibility for the children when he was home, this was often a physical impossibility, given his demanding work schedule. Defendant not only made it possible for plaintiff to work the grueling schedule that he kept, she also made sure plaintiff was able to study without interruption for the boards on two separate occasions. She did this by taking the children away to visit relatives and doing other things to keep them out of his way. Ning-Yen Yao v Karen Kao-Yao, 2017 NY Slip Op 01440, 1st Dept 2-23-17

 

FAMILY LAW (WIFE ENTITLED TO A PERCENTAGE OF HUSBAND’S ENHANCED EARNING CAPACITY BY ENABLING HUSBAND’S LONG WORKING HOURS AND HIS STUDY FOR MEDICAL BOARD EXAMS)/EQUITABLE DISTRIBUTION (WIFE ENTITLED TO A PERCENTAGE OF HUSBAND’S ENHANCED EARNING CAPACITY BY ENABLING HUSBAND’S LONG WORKING HOURS AND HIS STUDY FOR MEDICAL BOARD EXAMS)/ENHANCED EARNING CAPACITY (FAMILY LAW, EQUITABLE DISTRIBUTION, WIFE ENTITLED TO A PERCENTAGE OF HUSBAND’S ENHANCED EARNING CAPACITY BY ENABLING HUSBAND’S LONG WORKING HOURS AND HIS STUDY FOR MEDICAL BOARD EXAMS)

ABSENT PROOF OF 16-YEAR-OLD CHILD’S COLLEGE PLANS, ANY AWARD OF COLLEGE EXPENSES WOULD BE PREMATURE.

The Second Department, in a decision covering many equitable distribution issues not summarized here, determined any award of college expenses for a 16-year-old child was premature. No evidence was presented concerning the child’s academic wishes or plans:

… [T]he court did not err in declining to direct the defendant to contribute his pro rata share of the parties’ unemancipated child’s future college expenses. “The court may direct a parent to contribute to a child’s college education pursuant to Domestic Relations Law § 240(1-b)(c)(7)” … . “However, when college is several years away, and no evidence is presented as to the child’s academic interests, ability, possible choice of college, or what his or her expenses might be, a directive compelling [a parent] to pay for those expenses is premature and not supported by the evidence” … . At the time of the trial, the parties’ unemancipated child was 16 years old and was entering his junior year of high school. There was no evidence presented as to his academic interests, his possible choice of college, or what the expenses of college might be. Accordingly, the plaintiff’s request that the court direct the defendant to contribute his pro rata share of the parties’ unemancipated child’s future college expenses was premature … . Repetti v Repetti, 2017 NY Slip Op 01396, 2nd Dept 2-22-17

FAMILY LAW (EQUITABLE DISTRIBUTION, ABSENT PROOF OF 16-YEAR-OLD CHILD’S COLLEGE PLANS, ANY AWARD OF COLLEGE EXPENSES WOULD BE PREMATURE)/EQUITABLE DISTRIBUTION (COLLEGE EXPENSES, (EQUITABLE DISTRIBUTION, ABSENT PROOF OF 16-YEAR-OLD CHILD’S COLLEGE PLANS, ANY AWARD OF COLLEGE EXPENSES WOULD BE PREMATURE)/COLLEGE EXPENSES (FAMILY LAW, EQUITABLE DISTRIBUTION, ABSENT PROOF OF 16-YEAR-OLD CHILD’S COLLEGE PLANS, ANY AWARD OF COLLEGE EXPENSES WOULD BE PREMATURE)

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