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PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL.

The Second Department determined petitioner was properly estopped from asserting his paternity claim. The Second Department noted that the fact that petitioner’s paternity petition was reinstated upon a prior appeal did not preclude the denial of the petition on equitable estoppel grounds:

The Family Court properly applied the doctrine of equitable estoppel to preclude the petitioner from asserting his paternity claim with respect to the subject child. The evidence at a hearing established that the respondent Gaston R. has established a strong father-daughter relationship with the child. The child has referred to Gaston R. as “daddy” since she was 18 months old and continues to view him as the only father figure in her life. In contrast, the petitioner learned, shortly after the child’s birth, that he was the child’s biological father. Nevertheless, he did not commence the instant paternity proceeding until the child was four years old. The petitioner has not had a parent-child relationship with the child for several years, and the child no longer recognizes the petitioner’s name. Under these circumstances, the court properly determined that it was in the child’s best interests to equitably estop the petitioner from asserting his paternity claim

Contrary to the petitioner’s contention, this Court’s determination on a prior appeal, which, inter alia, reinstated his paternity petition, did not preclude the Family Court from considering the doctrine of equitable estoppel upon remittal … . Matter of Thomas T. v Luba R., 2017 NY Slip Op 01870, 2nd Dept 3-15-17

 

FAMILY LAW (PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)/PATERNITY (PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)/EQUITABLE ESTOPPEL (FAMILY LAW, PATERNITY, PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)/APPEALS (FAMILY LAW, PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)

APPELLANT’S LATE APPEARANCE FOR A HEARING DID NOT JUSTIFY A DEFAULT FINDING.

The Second Department determined Family Court should not have denied a motion to vacate an order of protection. Appellant had been slightly late for a hearing on her sister’s request for an order of protection and the order was issued based upon appellant’s default:

In this family offense proceeding, the Family Court issued an order of protection against the appellant and in favor of her sister upon the appellant’s failure to appear at a hearing. The appellant moved to vacate the order of protection entered upon her default, and the Family Court denied her motion. * * *

The Family Court improvidently exercised its discretion in denying the appellant’s motion to vacate the order of protection entered upon her default in appearing at the hearing. The appellant showed no willfulness or intent to default, where she was minimally tardy to the hearing, and the tardiness might have been due, at least in part, to crowded conditions at the courthouse, she attended prior court appearances, she engaged in motion practice through her attorney, and she participated in multiple preparatory conferences with her attorney … . Also, the appellant moved to vacate the order of protection relatively soon after it was issued. Under the circumstances, the appellant demonstrated a reasonable excuse for her failure to appear at the hearing. Further, the appellant demonstrated a potentially meritorious defense to the petition …. . Matter of Williams v Williams, 2017 NY Slip Op 01873, 2nd Dept 3-15-17

 

FAMILY LAW (APPELLANT’S LATE APPEARANCE FOR A HEARING DID NOT JUSTIFY A DEFAULT FINDING)/DEFAULT (FAMILY LAW, APPELLANT’S LATE APPEARANCE FOR A HEARING DID NOT JUSTIFY A DEFAULT FINDING)

PUBLIC POLICY PROHIBITS RECOUPMENT OF OVERPAYMENT OF CHILD SUPPORT.

The Second Department noted that public policy prohibited the recoupment of overpayment of child support by reducing future child support payments. However a commensurate reduction of future payments of educational expenses was okay:

“There is strong public policy in this state, which the [Child Support Standards Act] did not alter, against restitution or recoupment of the overpayment of child support” … . “The reason for this policy is that . . . child support payments are deemed to have been devoted to that purpose, and no funds exist from which one may recoup moneys so expended’ if the award is thereafter reversed or modified” … . Thus, recoupment of child support payments is only appropriate under “limited circumstances” … . * * *

However, “[w]hile child support overpayments may not be recovered by reducing future support payments, public policy does not forbid offsetting add-on expenses against an overpayment'” … . Thus, although the overpayments may not be applied to the father’s child support obligation, he may use the overpayments to offset his share of the add-on expenses, such as the educational expenses … . Matter of McGovern v McGovern, 2017 NY Slip Op 01862. 2nd Dept 3-15-17

 

FAMILY LAW (PUBLIC POLICY PROHIBITS RECOUPMENT OF OVERPAYMENT OF CHILD SUPPORT)/CHILD SUPPORT (PUBLIC POLICY PROHIBITS RECOUPMENT OF OVERPAYMENT OF CHILD SUPPORT)

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CHIDREN WERE HEALTHY AND WELL CARED FOR, NEGLECT PETITION BASED UPON MOTHER’S MENTAL ILLNESS PROPERLY DISMISSED.

The Second Department determined Family Court properly dismissed the neglect petition against mother which was based upon mother’s alleged mental illness:

Although a finding of neglect may be predicated upon proof that a child’s mental, physical, or emotional condition is in imminent danger of becoming impaired as a result of a parent’s mental illness, “proof of mental illness alone will not support a finding of neglect” … .

Here, the petitioner failed to sustain its burden of proving by a preponderance of the evidence that the children’s physical, mental, or emotional condition was in imminent danger of becoming impaired as a result of the mother’s mental illness … . The evidence showed that the children were healthy and well cared for by the mother … . Matter of Jaurelious G. (Gwendolyn J.), 2017 NY Slip Op 01692, 2nd Dept 3-8-17

 

FAMILY LAW (CHIDREN WERE HEALTHY AND WELL CARED FOR, NEGLECT PETITION BASED UPON MOTHER’S MENTAL ILLNESS PROPERLY DISMISSED)/NEGLECT (FAMILY LAW, MENTIAL ILLNESS, CHIDREN WERE HEALTHY AND WELL CARED FOR, NEGLECT PETITION BASED UPON MOTHER’S MENTAL ILLNESS PROPERLY DISMISSED)/MENTAL ILLNESS (FAMILY LAW, NEGLECT, CHIDREN WERE HEALTHY AND WELL CARED FOR, NEGLECT PETITION BASED UPON MOTHER’S MENTAL ILLNESS PROPERLY DISMISSED)

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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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