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HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED.

The Third Department reversed Family Court, finding that the hearsay evidence of the child’s statement father had touched her were not corroborated and therefore could not form the basis of a modification of custody:

Evidence of the abuse came in the form of the child’s out-of-court statements and, inasmuch as “the evidentiary standards established in Family Ct Act article 10” were applicable under these circumstances, the question became whether her statements were “sufficiently corroborated” so as to be admissible … . The mother testified that the child stated that the father had touched her, then acted out an incident of sexual abuse. The child also told her therapist that the father had touched her, but the therapist testified that the child declined to give details about the incident and did not opine that the child’s behavior was indicative of sexual assault or that there was reason to believe that her statements were truthful. The therapist expressly declined to offer such an opinion in her testimony, in fact, making clear that she would not say whether the child’s claims were “true or untrue.” The child herself did not testify, and Family Court rejected the belated requests of counsel for the father and the child for a Lincoln hearing.

The corroboration requirement is not demanding and may be “satisfied by any other evidence tending to support the reliability of the [child’s] previous statements” … , but mere “repetition of an accusation” will not suffice … . The proof here did not rise above repetition to include additional evidence such as expert testimony that the child’s behavior or her statements were consistent with abuse, physical evidence of abuse, or the sworn testimony or in camera statements of the child herself … . Matter of Leighann W. v Thomas X., 2016 NY Slip Op 05522, 3rd Dept 7-14-16

 

FAMILY LAW (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (FAMILY LAW, HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/HEARSAY (FAMILY LAW, HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/CUSTODY (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/CORROBORATION (FAMILY LAW, (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)

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WHEN CHILD TURNED 21 WHILE GUARDIANSHIP AND SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS WERE PENDING, FAMILY COURT LOST JURISDICTION.

The Second Department, in a full-fledged opinion by Justice Sgroi, determined Family Court no longer had jurisdiction over a petition seeking guardianship and special findings to seek special immigrant juvenile status (SIJS) because the child turned 21 during the pendency of the proceedings:

… [O]nce the subject child turned 21 years old, the Family Court no longer possessed authority to determine the guardianship petition. Furthermore, since dependency upon a juvenile court is a prerequisite for the issuance of an order making the declaration and specific findings to enable a child to petition for SIJS, the Family Court also properly denied the petitioner’s SIJS motion. Matter of Maria C.R. v Rafael G., 2016 NY Slip Op 05503, 7-13-16

FAMILY LAW (WHEN CHILD TURNED 21 WHILE GUARDIANSHIP AND SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS WERE PENDING, FAMILY COURT LOST JURISDICTION)/IMMIGRATION LAW (FAMILIY LAW, WHEN CHILD TURNED 21 WHILE GUARDIANSHIP AND SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS WERE PENDING, FAMILY COURT LOST JURISDICTION)/SPECIAL IMMIGRANT JUVENILE STATUS (WHEN CHILD TURNED 21 WHILE GUARDIANSHIP AND SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS WERE PENDING, FAMILY COURT LOST JURISDICTION)

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SUPPORT MAGISTRATE SHOULD NOT HAVE CONSIDERED MOTHER’S POST-HEARING SUBMISSION OF AFFIDAVITS AND EXHIBITS, FATHER DEPRIVED OF ABILITY TO CROSS-EXAMINE AND OBJECT TO EXHIBITS.

The Second Department determined father was entitled to a hearing on mother’s petition to enforce college expense provisions of a stipulation of settlement. The support magistrate considered affidavits and exhibits submitted after the hearing by mother, depriving father of his right to cross-examine and object:

Family Court Act § 433(a) requires that a respondent “shall be given opportunity to be heard and to present witnesses.” A hearing must consist of an adducement of proof coupled with an opportunity to rebut it … . Here, the Support Magistrate erred in considering the mother’s affidavits and unverified financial information, rather than testimony supported by appropriate documentary evidence, in determining the mother’s petition … . As the father was deprived of the opportunity to rebut the mother’s affidavits and exhibits, the matter must be remitted to the Family Court … for a new hearing and determination on the mother’s petition … . Matter of Hezi v Hezi, 2016 NY Slip Op 05498, 2nd Dept 7-13-16

 

FAMILY LAW (SUPPORT MAGISTRATE SHOULD NOT HAVE CONSIDERED MOTHER’S POST-HEARING SUBMISSION OF AFFIDAVITS AND EXHIBITS, FATHER DEPRIVED OF ABILITY TO CROSS-EXAMINE AND OBJECT TO EXHIBITS)/EVIDENCE (FAMILY COURT, SUPPORT MAGISTRATE SHOULD NOT HAVE CONSIDERED MOTHER’S POST-HEARING SUBMISSION OF AFFIDAVITS AND EXHIBITS, FATHER DEPRIVED OF ABILITY TO CROSS-EXAMINE AND OBJECT TO EXHIBITS)

HEARING SHOULD HAVE BEEN HELD TO DETERMINE WHETHER INTIMATE RELATIONSHIP PROVIDED FAMILY COURT WITH JURISDICTION OVER PETITION SEEKING ORDER OF PROTECTION.

The Second Department determined Family Court should have held a hearing to determine whether the court had jurisdiction over a petition for an order of protection based upon an “intimate relationship” between the subject of the proposed order of protection and the petitioner:

Although the statute expressly excludes a “casual acquaintance” and “ordinary fraternization between two individuals in business or social contexts” from the definition of “intimate relationship” (Family Ct Act § 812[1][e]), “the legislature left it to the courts to determine on a case-by-case basis what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e), based upon consideration of factors such as the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship'” … . “[T]he determination as to whether persons are or have been in an intimate relationship’ within the meaning of Family Court Act § 812(1)(e) is a fact-specific determination which may require a hearing” … .

Here, in light of the parties’ conflicting allegations as to whether they had an “intimate relationship” within the meaning of Family Court Act § 812(1)(e), the Family Court, prior to determining the respondent’s motion, in effect, to dismiss, should have conducted a hearing on that issue … . Matter of Singh v DiFrancisco, 2016 NY Slip Op 05504, 2nd Dept 7-13-16

FAMILY LAW (HEARING SHOULD HAVE BEEN HELD TO DETERMINE WHETHER INTIMATE RELATIONSHIP PROVIDED FAMILY COURT WITH JURISDICTION OVER PETITION SEEKING ORDER OF PROTECTION)/INTIMATE RELATIONSHIP (FAMILY LAW, HEARING SHOULD HAVE BEEN HELD TO DETERMINE WHETHER INTIMATE RELATIONSHIP PROVIDED FAMILY COURT WITH JURISDICTION OVER PETITION SEEKING ORDER OF PROTECTION)

NON-RELATIVE ALLEGED EXTRAORDINARY CIRCUMSTANCES REQUIRING A HEARING ON HER CUSTODY PETITION.

The Second Department, reversing Family Court, determined petitioner, a non-relative who regularly cared for the child, had made a showing of extraordinary circumstance sufficient to require a hearing on her petitioner for custody:

Although an individual who is unrelated to a child has no statutory right to seek custody … , a nonrelative may nevertheless be afforded standing to seek custody upon a showing of extraordinary factual circumstances … . We conclude that, contrary to the determination of the Family Court, the evidence presented at the hearing compels a finding of “extraordinary circumstances” … . The petitioner sustained her burden of demonstrating extraordinary circumstances based upon, inter alia, the prolonged separation of the grandfather and the step-grandmother from the subject child, their lack of significant involvement in the child’s life for a period of time, their failure to contribute to the child’s financial support, and the strong emotional bond between the child and the petitioner … . Matter of Cade v Roberts, 2016 NY Slip Op 05495, 2nd Dept 7-13-16

FAMILY LAW (NON-RELATIVE ALLEGED EXTRAORDINARY CIRCUMSTANCES REQUIRING A HEARING ON HER CUSTODY PETITION)/CUSTODY (NON-RELATIVE ALLEGED EXTRAORDINARY CIRCUMSTANCES REQUIRING A HEARING ON HER CUSTODY PETITION)

CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS.

The Fourth Department, reversing Family Court, determined the children in the neglect proceeding did not receive effective assistance of counsel from the attorney for the child (AFC). The AFC took positions contrary to the wishes of two of the children (Brian and Alyssa):

The Rules of the Chief Judge provide that an AFC “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]), even if the AFC “believes that what the child wants is not in the child’s best interests” … . There are two exceptions to this rule: (1) where the AFC is convinced that the “child lacks the capacity for knowing, voluntary and considered judgment”; or (2) where the AFC is convinced that “following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child” … . Here, there is no dispute that the trial AFC took a position contrary to the position of two of the subject children … . * * *

Inasmuch as the trial AFC failed to advocate Brian and Alyssa’s position at the fact-finding hearing, he was required to determine that one of the two exceptions to the Rules of the Chief Judge applied, as well as “[to] inform the court of the child[ren]’s articulated wishes” … . Here, the trial AFC did not fulfill either obligation … . Indeed, the record establishes that neither of the two exceptions applied. Matter of Brian S. (Scott S.), 2016 NY Slip Op 05464, 4th Dept 7-8-16

 

FAMILY LAW (CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)/ATTORNEYS (FAMILY LAW, CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)/NEGLECT (CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)/EFFECTIVE ASSISTANCE OF COUNSEL (FAMMILY LAW, CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)

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MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING.

The Third Department determined Family Court should not have, sua sponte, dismissed mother’s pro se petition for custody modification without a hearing:

“‘In any modification proceeding, the threshold issue is whether there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the child[]'” … . While an evidentiary hearing is not required in every case, a hearing is generally “necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child[]’s best interests” … . In determining whether a pro se petitioner made a sufficient evidentiary showing to warrant a hearing, we construe the pleadings liberally and afford the petitioner the benefit of every favorable inference … .

In her pro se petition, the mother alleged that she had moved into an apartment with the child’s maternal grandmother, had enrolled as a full-time student and was attending “[a]lcohol counseling.” Inasmuch as the mother’s alcohol abuse was a primary factor in Family Court’s January 2015 custody determination, the mother’s factual allegations of improvement, construed liberally and if established after a hearing, could afford a basis for awarding the mother increased parenting time, unsupervised parenting time and/or access to the child’s medical and educational records. Accordingly, we find that Family Court erred in dismissing the mother’s petition without a hearing … . Matter of Miller v Bush, 2016 NY Slip Op 05413, 3rd Dept 7-7-16

 

FAMILY LAW (MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING)/CUSTODY (MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING)/MODIFICATION OF CUSTODY (MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING)

SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED.

The Third Department determined the severe abuse petition against mother (respondent) should not have been dismissed by Family Court. The abuse was apparently inflicted by mother’s boyfriend in her absence and resulted in the child’s death:

Respondent demonstrated reckless judgment and disregard for the safety and well-being of the older child by allowing the boyfriend — who she had dated for only a very brief period of time and knew went out at night to procure illegal drugs — to care for her children and, significantly, by permitting him to continue to care for her children and inflict further abuse after the older child had sustained serious and an abnormal degree of bruising, which she unreasonably attributed to accidental causes and the explanations provided by the boyfriend … . To that end, respondent was aware, or should have been aware, of the older child’s numerous injuries indicative of extensive, repeated and accumulating abuse.

Equally troubling is respondent’s failure to seek professional medical treatment for the older child notwithstanding her knowledge of numerous visible injuries. Matter of Mason F. (Katlin G.–Louis F.), 2016 NY Slip Op 05408, 3rd Dept 7-7-16

 

FAMILY LAW (SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED)/CHILD ABUSE (SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED)/SEVERE ABUSE (SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED)

FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED.

The Third Department determined mother presented sufficient evidence of a change in circumstances to survive father’s motion to dismiss her petition for a custody modification:

Viewed as a whole and accepted as true for this purpose, despite the existence of some apparent contrary evidence, the mother’s proof regarding physical discipline in the father’s household, together with the alleged improvement and stabilization of the mother’s living situation, constituted a change in circumstances sufficient to overcome a motion to dismiss … . The mother thus satisfied her initial burden, and a further and more complete inquiry as to whether a modification of custody is in the best interests of the children is warranted … . Accordingly, we find that Family Court erred in granting the father’s motion to dismiss on this ground.  Matter of Mary BB. v George CC., 2016 NY Slip Op 05406, 3rd Dept 7-7-16

FAMILY LAW (FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED)/CUSTODY (FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED)/MODIFICATION OF CUSTODY (FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED)

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FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS.

The Second Department, reversing Family Court, determined the petition for an order making specific findings which would lead to special immigrant resident status (SIJS) should have been granted:

Pursuant to 8 USC § 1101(a)(27)(J) … and 8 CFR 204.11, a special immigrant is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not possible due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the juvenile’s best interest to be returned to his or her previous country of nationality or country of last habitual residence … .

Based upon our independent factual review, the record establishes that the child’s father is deceased, and therefore, reunification of the child with the father is not possible … .

Further, the Family Court erred with respect to its recital of the best interest element. The law does not require a finding that “it is in [the child’s] best interest to remain in the United States,” but that “it would not be in the [child’s] best interest to be returned to [his or her] previous country of nationality or country of last habitual residence” (8 USC § 1101[a][27][J][ii]). Here, the record reflects that it would not be in the child’s best interest to be returned to El Salvador, her previous country of nationality and last habitual residence. Matter of Carlos A.M. v Maria T.M., 2016 NY Slip Op 05374, 2nd Dept 7-6-16

 

FAMILY LAW (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)/IMMIGRATION LAW (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)/SPECIAL IMMIGRANT RESIDENT STATUS (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)

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