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DSS FAILED TO DEMONSTRATE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF FATHER’S PARENTAL RIGHTS REVERSED.

The Second Department, reversing Family Court, determined the Department of Social Services (DSS) did not make diligent efforts to strengthen the relationship between father and the children before seeking termination of the father’s parental rights on the ground of permanent neglect:

 

In proceedings to terminate parental rights based on permanent neglect, the agency must first establish, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen the parental relationship with the child (see Social Services Law § 384-b[7][a]…). The efforts must include reasonable attempts at providing counseling, scheduling regular visitation with the child, providing other services to the parent to overcome the particular problems that separated the parent from his or her child, and informing the parent of his or her child’s progress (see Social Services Law § 384-b[7][f]…). The court “shall also consider the particular constraints, including but not limited to, limitations placed on family contact and the unavailability of social or rehabilitative services to aid in the development of a meaningful relationship between the parent and his or her child, that may impact the parent’s ability to substantially and continuously or repeatedly maintain contact with his or her child and to plan for the future of his or her child” (Social Services Law § 384-b[7][a]).

Here, DSS failed to meet its initial burden of demonstrating that it exercised diligent efforts to strengthen the parental relationship between the father and his children … . DSS’s evidence demonstrated that its caseworkers’ focus was on the mother’s relationship with the children, as she was the initial subject of the proceedings and the father was not a party thereto. Further, although the evidence adduced at the fact-finding hearing showed that the DSS caseworkers advised the father to seek unsupervised visitation with the children since the supervised visits were positive, the evidence also showed that DSS did not support such unsupervised visitation and was aware that the father’s access to the children was limited by the order of protection. Moreover, although DSS scheduled supervised visits between the father and the children and provided the father with notices of regularly scheduled permanency hearings and service plan reviews, it did little more to determine the particular problems facing the father with respect to the return of his children and did not make affirmative, repeated, and meaningful efforts to assist him in overcoming these handicaps before it commenced these proceedings … . Further, DSS’s evidence demonstrated that the father satisfied all requests that DSS made of him, which included attending a parenting class and marriage counseling, and showed himself to be a loving and appropriate parent at the supervised visitation sessions.  Matter of Gabriel B. S.-P. (Anonymous) (Franklin S. (Anonymous)), 2016 NY Slip Op 00645, 2nd Dept 2-3-16

 

FAMILY LAW (DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF PARENTAL RIGHTS REVERSED)/PARENTAL RIGHTS (TERMINATION REVERSED, DSS DID NOT MAKE DILIGENT EFFORST TO STRENGTHEN RELATIONSHIP)/TERMINATION OF PARENTAL RIGHTS (REVERSED, DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHENN RELATIONSHIP)

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DESPITE THE HUSBAND’S EXTRAORDINARY WEALTH, THE WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE PRENUPTIAL AGREEMENT SHOULD NOT HAVE SURVIVED SUMMARY JUDGMENT.

The First Department, in a full-fledged opinion by Justice Richter, over a full-fledged concurring opinion and a full-fledged dissenting opinion, determined the wife’s action to set aside a prenuptial agreement, on the ground of overreaching, should have been dismissed. The fact that the husband’s net worth allegedly was $188 million in 2013, and the resulting contrast between what the husband could afford to provide and what the prenuptial agreement called for, among several other factors, raised a question of fact about “overreaching” in the eyes of the dissent. The arguments raised in the three opinions are too lengthy and detailed to fairly summarize here. On the issue of overreaching, the majority wrote:

 

Here, the wife’s motion did not challenge the prenuptial agreement on the ground that it is the product of coercion, duress or fraud. Nor did the wife argue that the agreement’s terms as a whole are unconscionable. Rather, her only claim was that the agreement is manifestly unfair due to the husband’s overreaching … . Although no actual fraud need be shown to set aside the agreement on this ground, the challenging party must show overreaching in the execution, such as the concealment of facts, misrepresentation, cunning, cheating, sharp practice, or some other form of deception … . In addition, the challenging party must show that the overreaching resulted in terms so manifestly unfair as to warrant equity’s intervention … .

Judged by these standards, the wife has failed to meet her heavy burden to set aside the prenuptial agreement. No issue of fact exists as to whether the husband engaged in overreaching during the negotiations leading up to the execution of the agreement. The agreement was the product of on-and-off discussions that took place over the course of more than a year and a half. Although initially the parties negotiated by themselves, about midway through, the wife retained the services of a partner in a prominent matrimonial firm. Negotiations continued by the parties and their attorneys, with draft agreements exchanged and terms modified. Both the fact that the wife was an active participant in the negotiations, and was the one who was pushing to get the agreement signed, are hard to reconcile with her current claim of overreaching. Gottlieb v Gottlieb, 2016 NY Slip Op 00613, 1st Dept 1-28-16

 

FAMILY LAW (PRENUPTIAL AGREEMENT, WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE AGREEMENT SHOULD HAVE BEEN DISMISSED)/CONTRACT LAW (PRENUPTIAL AGREEMENT, WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE AGREEMENT SHOULD HAVE BEEN DISMISSED)/PRENUPTIAL AGREEMENT (WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE AGREEMENT SHOULD HAVE BEEN DISMISSED)

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AGREEMENT WHICH WAS PART OF A FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED UNDER THE DOCTRINE OF COMITY.

The Second Department determined an agreement, called a mahr agreement, which was part of a foreign Islamic divorce decree and which called for the payment to the wife of $250,000, was properly enforced by Supreme Court under the doctrine of comity:

 

“Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States” … . Comity should be extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York … . Moreover, in extending comity to uphold the validity of a foreign divorce decree, New York courts will generally recognize all the provisions of such decrees, including any agreement which may have been incorporated therein, unless modification is required by reason of some compelling public policy … .

Here, the mahr agreement, although not acknowledged in accordance with Domestic Relations Law § 236(B)(3), was signed by the parties and two witnesses, as well as the Imam of the Islamic Cultural Center of New York. Under the circumstances presented, the Supreme Court properly recognized so much of the foreign judgment of divorce as incorporated the mahr agreement under the principles of comity, as no strong public policy of New York was violated thereby … . Badawi v Alesawy, 2016 NY Slip Op 00317, 2nd Dept 1-20-16

 

FAMILY LAW (AGREEMENT WHICH WAS PART OF A FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED UNDER DOCTRINE OF COMITY)/COMITY (AGREEMENT WHICH WAS PART OF FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED IN SUPREME COURT)

GOOD CAUSE FOR A FIVE-YEAR EXTENSION OF AN ORDER OF PROTECTION WAS DEMONSTRATED, CRITERIA EXPLAINED.

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Chambers, determined petitioner had made showing of “good cause” for the extension of an order of protection, and the court ordered a five-year extension. The court took the opportunity to define “good cause” in this context:

 

… [I]n determining whether good cause has been established, courts should consider, but are not limited by, the following factors: the nature of the relationship between the parties, taking into account their former relationship, the circumstances leading up to the entry of the initial order of protection, and the state of the relationship at the time of the request for an extension; the frequency of interaction between the parties; any subsequent instances of domestic violence or violations of the existing order of protection; and whether the current circumstances are such that concern for the safety and well-being of the petitioner is reasonable … . * * *

The petitioner stated that, because they have a child in common, the parties continue to interact. They come into contact during litigation over custody and visitation issues and when they exchange the child at the drop-off location at the police station. The respondent also has a history of assaulting the petitioner, and their on-going discord continues. There is no evidence in the record to suggest that the petitioner’s more serious allegations were contrived. Moreover, it is undisputed that, since the entry of the subject order of protection, the respondent has pleaded guilty in the Criminal Court to disorderly conduct, and the Criminal Court has issued a two-year order of protection in favor of the petitioner. Therefore, it is clear from the record that the petitioner’s fear that the respondent may stalk, harass, or attack her is well-founded, and that the unavoidable interactions between the parties may subject her to a reoccurrence of violence … . Matter of Molloy v Molloy, 2016 NY Slip Op 00366, 2nd Dept 1-20-16

 

FAMILY LAW (GOOD CAUSE FOR EXTENSION OF ORDER OF PROTECTION WAS DEMONSTRATED, CRITERIA EXPLAINED)/ORDERS OF PROTECTION (FAMILY COURT, CRITERIA FOR DEMONSTRATION OF GOOD CAUSE FOR AN EXTENSION EXPLAINED)

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SUPPRESSION OF JUVENILE’S PROVIDING FALSE NAME AND DATE OF BIRTH TO POLICE OFFICER PROPERLY DENIED; JUVENILE DELINQUENCY ADJUDICATION BASED UPON THE FALSE PEDIGREE INFORMATION PROPER.

The First Department, over an extensive dissent, determined suppression of the juvenile’s giving a false name and date of birth when asked for that information by a police officer was properly denied. The juvenile was warned by the officer that providing false pedigree information would result in a false personation charge (a class B misdemeanor). The juvenile was in fact found to have committed an act which, if committed by an adult, would constitute false personation. The court further determined the sentence of probation was the least restrictive alternative consistent with the juvenile’s needs. The dissent focused on the propriety of the sentence. With respect to the denial of the suppression motion, the court explained:

The court properly denied appellant’s motion to suppress her statement to the police, in which she gave a false name and date of birth, resulting in the false personation charge (Penal Law § 190.23). The police had probable cause to believe appellant was a runaway … . The then 14-year-old appellant, who appeared to be as young as 13, was alone in a PATH station in New Jersey, but she vaguely claimed to live in “upstate” New York. In addition, she had a bruised eye and was wearing provocative clothing, suggesting the possibility of some kind of sexual exploitation. The police were entitled to ask pedigree questions without Miranda warnings, even though an officer warned appellant, as required by the false personation statute, that providing false information would result in an additional charge … . Matter of Christy C., 2016 NY Slip Op 00095, 1st Dept 1-12-16

 

DOCTRINE OF EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST FOR AN ORDER OF FILIATION, CRITERIA EXPLAINED.

The Third Department affirmed Family Court’s finding that the doctrine of equitable estoppel did not apply to petitioner’s application for an order of filiation. Equitable estoppel is triggered when the party seeking an order of filiation has acquiesced in the development of a parent-child relationship with another man. Here, although the child recognized some persons as “father figures” no parent-child relationship had developed with any single person:

 

“The doctrine of equitable estoppel is a defense in a paternity proceeding which, among other applications, precludes a man . . . from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man” … . The party asserting application of the doctrine — here, the attorney for the children — “has the initial burden of establishing a prima facie case to support that claim” … . Assuming that burden is met, the burden then shifts to the nonmoving party — here, petitioner — to establish that it would be in the best interests of the children to order the genetic marker test … .

… [W]e agree with Family Court that application of the doctrine of equitable estoppel is not warranted here. Although the children’s therapist testified on direct (and respondent testified on rebuttal) that the girls do not recognize petitioner as their father, “[n]oticeably absent from the record is any indication that [another identified individual] played a significant role in raising, nuturing or caring for [respondent’s children]” … . To the contrary, both the therapist and respondent acknowledged that the children identified a number of individuals as “father figures” in their lives … . Hence, establishing petitioner’s paternity would not disrupt an existing parent-child relationship between the children and another individual … . Matter of Patrick A. v Rochelle B., 2016 NY Slip Op 00079, 3rd Dept 1-7-16

 

FAMILY LAW (EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST FOR AN ORDER OF FILIATION)/EQUITABLE ESTOPPEL (FAMILY LAW, EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST FOR AN ORDER OF FILIATION)/FILIATION, ORDER OF (EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST)/PATERNITY (EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST FOR AN ORDER OF FILIATION)

FINAL ORDERS OF PROTECTION ISSUED ON THE COURT’S OWN MOTION WITHOUT FOLLOWING THE PROCEDURE REQUIRED BY FAMILY COURT ACT 154-c VACATED.

The Third Department determined Family Court did not follow the statutory procedure for issuing final orders of protection. Although a court may issue a temporary order of protection on its own motion without following the procedure, it may not do so for final orders:

 

… Family Ct Act § 154-c (3) provides, in relevant part: “No order of protection may direct any party to observe conditions of behavior unless: (i) the party requesting the order of protection has served and filed a petition or counter-claim in accordance with article four, five, six or eight of this act and, (ii) the court has made a finding on the record that such party is entitled to issuance of the order of protection which may result from a judicial finding of fact, judicial acceptance of an admission by the party against whom the order was issued or judicial finding that the party against whom the order is issued has given knowing, intelligent and voluntary consent to its issuance” (emphasis added). Although a Family Court can issue a temporary order of protection on its own motion and, in so doing, it would “not [be] required to follow all of the ordinary procedural requirements” (… see Family Ct Act § 828 [1] [a]), where, as here, the court enters a final order of protection, it is required to observe the procedural steps set forth in Family Ct Act § 154-c (3) … . Indeed, Family Ct Act § 154-c (3) was amended in 1998 “to incorporate, explicitly, federal minimum due-process requirements regarding judicial findings as a prerequisite to issuing orders of protection, to ensure that such orders are given full faith and credit by courts of other jurisdictions” …

Here, although there was an exchange of proposed terms for mutual orders of protection, the mother clearly indicated that she did not consent to the orders containing the terms that Family Court ultimately adopted on its own motion or admit any pertinent allegations set forth in the father’s family offense petition … . Nor did Family Court conduct an examination of the factual basis of the parties’ family offense petitions or make a finding that the terms objected to by the mother were “reasonably necessary” to protect the parties or their children … . Matter of Daniel W. v Kimberly W., 2016 NY Slip Op 00070, 3rd Dept 1-7-16

 

FAMILY LAW (FINAL ORDERS OF PROTECTION ISSUED ON THE COURT’S OWN MOTION WITHOUT FOLLOWING STATUTORY PROCEDURE VACATED)/ORDERS OF PROTECTION (FAMILY COURT, FINAL ORDERS OF PROTECTION ISSUED ON THE COURT’S OWN MOTION WITHOUT FOLLOWING STATUTORY PROCEDURE VACATED)

GRANDMOTHER DID NOT DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES JUSTIFYING AWARD OF CUSTODY OF GRANDCHILD TO HER, ANALYTICAL PRINCIPLES EXPLAINED.

The Third Department determined grandmother did not meet her burden of demonstrating extraordinary circumstances justifying the award of custody of the child to her. Family Court’s award of joint custody to mother and father was affirmed. Mother had relinquished custody to grandmother as an emergency measure (due to domestic abuse) but had continuously worked to regain custody. The court explained the relevant analytical principles:

 

It is well settled that, in the absence of extraordinary circumstances such as surrender, abandonment, persistent neglect, unfitness or an extended period of custody disruption, a parent has a claim of custody to his or her child superior to all others … . Here, since no finding of extraordinary circumstances had previously been made, the grandmother bore “the heavy burden of first establishing the existence of extraordinary circumstances to overcome the . . . parents’ superior right of custody” … . Only upon such a showing would Family Court proceed to address the issue of the child’s best interests … . Relevant here, “a prolonged separation of the . . . parent and the child for at least [24] continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of [a] grandparent” may constitute a disruption of custody sufficient to demonstrate extraordinary circumstances (Domestic Relations Law § 72 [2] [b]…). “An order placing a child in a nonparent’s custody upon a parent’s consent is neither a judicial finding nor an admission of extraordinary circumstances” … . Moreover, if the parent spends the period of separation trying to regain custody of his or her child, that period would not necessarily support a finding of extraordinary circumstances … . Matter of Elizabeth SS. v Gracealee SS., 2016 NY Slip Op 00068, 3rd Dept 1-7-16

 

FAMILY LAW (GRANDMOTHER DID NOT DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES JUSTIFYING CUSTODY OF GRANDCHILD)/CUSTODY (GRANDMOTHER DID NOT DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES JUSTIFYING CUSTODY OF GRANDCHILD)

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ONLY A CLOSE RELATIVE COULD SUFFICIENTLY ALLEGE THAT THE APPELLANT WAS UNDER SIXTEEN TO SUPPORT THE AGE-ELEMENT OF THE CHARGED OFFENSE; HERE APPELLANT’S COUSIN’S ALLEGATION APPELLANT WAS FOURTEEN WAS INSUFFICIENT.

The Second Department determined that the allegation of appellant’s age in a juvenile delinquency petition was insufficient. The adjudication based upon “unlawful possession of weapons by persons under sixteen” was therefore deleted. Although an allegation of age by a close relative will be sufficient to support an age-element of an offense, here the age allegation was made by appellant’s cousin:

Here, the petition failed to provide an adequate nonhearsay allegation of an essential element of Penal Law § 265.05, namely, that the appellant was under the age of sixteen at the time of the incident. The complainant’s supporting deposition alleged that the appellant was his “14-year-old cousin,” but it did not state the source of the complainant’s knowledge of the appellant’s age. The presentment agency contends that the allegation is sufficient, and it relies on the proposition that “it is generally recognized that the age of a family member is common knowledge within a family” (Matter of Brandon P., 106 AD3d 653, 653). That proposition, however, applies to close family relationships. Notably, in Matter of Brandon P., the allegation as to the appellant’s age was made by the appellant’s sister (see id. at 653). The relationship of “cousin,” by contrast, is too distant and too broad in degree of consanguinity (see Black’s Law Dictionary 442-443 [10th ed 2014]) to meet the requirements of Family Court Act § 311.2 in this case. Specifically, the complainant’s statement regarding the appellant’s age was not a sufficient nonhearsay allegation based on personal knowledge establishing reasonable cause to believe that the age element of the offense was met. Since count four of the petition was jurisdictionally defective, that count must be dismissed, and the order of disposition and the order of fact-finding modified accordingly … . Matter of Diamond J. (Anonymous), 2015 NY Slip Op 09689, 2nd Dept 12-30-15

FAMILY LAW (JUVENILE DELINQUENCY, AGE-ALLEGATION FOR AN OFFENSE CHARGED IN A JUVENILE DELINQUENCY PETITION CAN ONLY BE MADE BY A CLOSE RELATIVE)/JUVENILE DELINQUENCY (AGE-ALLEGATION FOR AN OFFENSE CHARGED IN A JUVENILE DELINQUENCY PETITION CAN ONLY BE MADE BY A CLOSE RELATIVE)/EVIDENCE (AGE-ALLEGATION FOR AN OFFENSE CHARGED IN A JUVENILE DELINQUENCY PETITION CAN ONLY BE  MADE BY A CLOSE RELATIVE)

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STATEMENT TO LAW ENFORCEMENT PERSONNEL BY AN INCAPACITATED JUVENILE ADMISSIBLE IN PROBABLE CAUSE HEARING WHICH LED TO A MENTAL HEALTH COMMITMENT OF THE JUVENILE.

The Second Department determined a statement made to law enforcement personnel by a juvenile respondent who was deemed incapacitated was admissible in the probable cause hearing which led to the juvenile’s commitment to the custody of the commissioner of mental health/mental retardation and developmental disabilities. The juvenile allegedly started a fire in his father’s house. Family Court found the juvenile to be incapacitated and therefore no fact-finding hearing was held. At the probable cause hearing (re: commitment of the juvenile) the juvenile’s statement, made after waiving his Miranda rights, was admitted in evidence:

… Family Court did not violate [the juvenile’s] due process rights by ordering his commitment based on a probable cause finding that depended, in part, on a written statement he made to law enforcement officials. The court’s finding that the appellant lacked the capacity to proceed to a fact-finding hearing did not equate to a finding that the appellant could not comprehend the Miranda warnings … that were administered by a police officer before the appellant made his statement. To be competent to proceed to a fact-finding hearing, a juvenile respondent must have the capacity to understand the proceedings and to assist in his or her own defense (see Family Ct Act § 301.2[13]). In contrast, “[a]n individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended, regardless of his or her ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process” … . Thus, the court’s incapacity finding did not undermine the reliability of the appellant’s statement with respect to whether there was probable cause to believe that the appellant committed an offense. Further, the statement was, prima facie, competent for that purpose, even if it might later be rendered inadmissible by extrinsic proof … . Matter of Jaime E. S. (Anonymous), 2015 NY Slip Op 09694, 2nd Dept 12-30-15

FAMILY LAW (JUVENILE DELINQUENCY, STATEMENT MADE BY INCAPACITATED JUVENILE ADMISSIBLE IN PROBABLE CAUSE HEARING)/JUVENILE DELINQUENCY (STATEMENT MADE BY INCAPACITATED JUVENILE ADMISSIBLE IN PROBABLE CAUSE HEARING)/EVIDENCE (JUVENILE DELINQUENCY, STATEMENT MADE BY INCAPACITATED JUVENILE ADMISSIBLE IN PROBABLE CAUSE HEARING)

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