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NEW YORK WOULD REMAIN “HOME STATE” FOR A CUSTODY MATTER IF FATHER WRONGFULLY PREVENTED CHILDREN FROM RETURNING TO NEW YORK FROM BANGLADESH IN THE SIX MONTHS BEFORE THE FILING OF THE PETITION.

The Second Department determined Family Court should not have concluded it did not have subject matter jurisdiction over a custody matter without conducting a hearing. It was alleged father was wrongfully preventing the children from returning to New York from Bangladesh. If father prevented the children from returning to New York in the six month period before the petition was filed, New York, pursuant to the controlling statutes, would be the “home state:”

Under the Domestic Relations Law, a state may have jurisdiction over a child custody proceeding if the “state is the home state of the child” (Domestic Relations Law § 76[1][a]…). A “[h]ome [s]tate” is defined as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a[7]). The definition of a “[h]ome [s]tate” also permits a period of temporary absence during the six-month time frame necessary to establish home-state residency (Domestic Relations Law § 75-a[7]…). In addition, it is established that a parent “may not wrongfully remove or withhold a child from the other parent for the purpose of establishing a home state’ for that child” … .

Here, there are disputed allegations as to the circumstances of the continued presence of the children in Bangladesh. Thus, under the circumstances of this case, the Family Court erred in dismissing the petition based on lack of subject matter jurisdiction without conducting a hearing as to whether the children were wrongfully prevented from returning to New York during the six-month period preceding the petition. If that is the case, New York remained the “home state” of the children in light of such wrongdoing … . Matter of Padmo v Kayef, 2015 NY Slip Op 09289, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

FAMILY LAW (JURISDICTION OVER CUSTODY, PARENT PREVENTS CHILDREN FROM RETURNING TO NEW YORK)/CUSTODY (JURISDICTION OVER CUSTODY MATTER, PARENT PREVENTS CHILDREN FROM RETURNING TO NEW YORK)/JURISDICTION (FAMILY COURT, JURISDICTION OVER CUSTODY MATTER WHERE PARENT PREVENTS RETURN OF CHILDREN TO NEW YORK)

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MOTHER’S MOTION FOR FINDINGS ALLOWING HER CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED.

Reversing Family Court, the Second Department determined mother’s motion for findings allowing her child to petition for special immigrant juvenile status (SIJS) should have been granted:

… [W]e declare that the child has been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court, and we find that the child is unmarried and under 21 years of age, that reunification with one of his parents is not viable due to parental abandonment, and that it would not be in his best interests to return to El Salvador … . Matter of Tommy E. H. (Anonymous) v Silvia C. (Anonymous), 2015 NY Slip Op 09104, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

SPECIAL IMMIGRANT JUVENILE STATUS (MOTHER’S MOTION FOR FINDINGS SHOULD HAVE BEEN GRANTED)/IMMIGRATION LAW (MOTHER’S MOTION FOR FINDINGS ALLOWING HER CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED)

DESPITE FLORIDA DIVORCE, NEW YORK HAD JURISDICTION OVER THE CUSTODY/VISITATION MATTERS BASED UPON THE PARTIES’ PRESENCE IN NEW YORK.

Reversing Family Court, the Third Department determined New York had jurisdiction over the custody/visitation matters, despite the Florida divorce. The parties had subsequently moved from Florida to New York and there was no indication the relocation was temporary. The criteria for New York’s jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has nothing to do with the legal residence of the parties. The court further determined that the relevant provisions of the UCCJEA did not conflict with the Parental Kidnapping Prevention Act (PKPA) and was therefore not preempted by the PKPA. With respect to New York’s juriisdiction, the court wrote:

Consistent with the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter UCCJEA), which is codified in Domestic Relations Law article 5-A, “a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial custody determination under [Domestic Relations Law § 76 (1) (a) or (b)]” and, insofar as is relevant here, “[a] court of this state . . . determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state” (Domestic Relations Law § 76-b [2]). As to the first criteria, jurisdiction to render an initial custody determination may be predicated upon, among other things, a finding that “this state is the home state of the child on the date of the commencement of the proceeding” (Domestic Relations Law § 76 [1] [a]). A child’s home state, in turn, is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a [7]…). A child custody proceeding includes a proceeding in which visitation with the child is at issue (see Domestic Relations Law § 75-a [4]), and the commencement of a proceeding “means the filing of the first pleading in a proceeding” (Domestic Relations Law § 75-a [5] … ). Matter of Lewis v Martin, 2015 NY Slip Op 08879, 3rd Dept 12-3-15

FAMILY LAW (JURISDICTION OVER CUSTODY, NEW YORK’S JURISDICTION DESPITE FLORIDA DIVORCE)/JURISDICTION (CUSTODY, NEW YORK’S JURISDICTION DESPITE FLORIDA DIVORCE)/UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) (JURISDICTION OF NEW YORK DESPITE FLORIDA DIVORCE)/PARENTAL KIDNAPPING PREVENTION ACT (PKPA) (NO CONFLICT WITH UCCJEA)

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PRIMA FACIE CASE OF NEGLECT REBUTTED BY MOTHER’S EXPERT.

Reversing Family Court, the Second Department determined expert testimony on behalf of the mother rebutted the petitioner’s prima facie case of neglect. The court noted the nature of petitioner’s prima facie proof is akin to the doctrine of res ipsa loquitur in negligence. Proof of an injury to a child which would not occur if the child had been in the care of a responsible caregiver is enough to make out a prima facie case. Expert testimony demonstrating the injuries may have occurred when the child was not in the mother’s care and further demonstrating alternate causes of the injuries was sufficient to rebut the prima facie case of neglect/abuse:

Section 1046(a)(ii) of the Family Court Act permits a finding of abuse based upon evidence of an injury to a child which would ordinarily not occur absent acts or omissions of the responsible caretaker, and “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” … . “If the petitioner establishes a prima facie case of abuse, the burden of going forward shifts to respondents to rebut the evidence of parental culpability,’ although the burden of proof always remains with the petitioner” … .

The petitioner established a prima facie case of abuse … . Contrary to the petitioner’s contention, however, the mother presented sufficient evidence to rebut the petitioner’s case, through the testimony of her expert witness. The mother’s expert witness testified that the injuries … occurred during a period of time when the petitioner had not established that [the child] was in the exclusive care of the mother. Additionally, the expert opined that the injuries could have resulted from alternate mechanisms. Thus, the petitioner failed to establish, by a preponderance of the evidence, that the mother abused [the child] … . Matter of Miguel G. (Navil G.). 2015 NY Slip Op 08834, 2nd Dept 12-2-15

FAMILY LAW (NEGLECT NOT ESTABLISHED, PETITIONER’S CASE REBUTTED)/NEGLECT (PETITIONER’S PRIMA FACIE CASE REBUTTED BY EXPERT TESTIMONY)/EXPERT TESTIMONY (SUFFICIENT TO REBUT PRIMA FACIE CASE OF NEGLECT)

Extraordinary Circumstances Warranted Award of Custody to Non-Parent

The Fourth Department, over a two-justice dissent, determined Family Court properly awarded custody of the child to the child’s half brother:

It is well-settled that, “as between a parent and nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ ” … . Here, the evidence established that the mother and the father changed residences frequently over a period of 18 months, and they were evicted from one residence and were homeless for several months, living in a tent or their vehicle. The child changed schools five times in four school districts over that same time period and, with each change in school, the child missed at least several days and sometimes several weeks of school. Indeed, we note that “[u]nrebutted evidence of excessive school absences [is] sufficient to establish . . . educational neglect” … . The evidence also supports the court’s conclusion that the child had poor hygiene. Thus, the record establishes that the mother and the father have exhibited “behavior evincing utter indifference and irresponsibility,” and the court therefore properly concluded that extraordinary circumstances exist…  .

It is well settled that, “once extraordinary circumstances are found, the court must then make the disposition that is in the best interest[s] of the child” … , and we agree with the court that the child’s best interests are served by awarding petitioner custody of the child with visitation to the mother and the father… . Matter of Stent v Schwartz, 2015 NY Slip Op 08535, 4th Dept 11-20-15

 

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Neglect Finding Cannot Be Based Upon Judicial Notice of a Drug Conviction

Reversing Family Court, the Second Department explained the pre-requisites for a neglect finding. Here Family Court erroneously made a neglect finding by taking judicial notice of mother’s drug conviction:

Family Court Act § 1051(a) provides that the Family Court may enter an order finding that a child is an abused child or a neglected child on the consent of all parties and the attorney for the child, or following the completion of a fact-finding hearing at which the petitioning agency establishes the allegations of abuse or neglect by a preponderance of the evidence (see Family Ct Act §§ 1044, 1046[b][i]). Further, in appropriate cases, the Family Court may also enter an order finding that a child is an abused child or a neglected child on a motion for summary judgment in lieu of holding a fact-finding hearing, upon the petitioning agency’s prima facie showing of neglect or abuse as a matter of law, and the respondent’s failure to raise a triable issue of fact in opposition to the motion … .

Here, the Family Court did not enter the finding of neglect on the consent of all parties and the attorney for the child, or following the completion of a fact-finding hearing (see Family Ct Act § 1051[a]). Moreover, the Family Court did not enter the finding of neglect upon a motion by the DSS for summary judgment … . Thus, the Family Court, which simply took judicial notice at a conference of a certificate of disposition, lacked the authority to enter a finding of neglect. Matter of Vincent M. (Jamie M.), 2015 NY Slip Op 08170, 2nd Dept 11-12-15

 

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Motions for Findings Allowing Child to Petition for Special Immigrant Juvenile Status Should Have Been Granted

The Second Department, reversing Family Court, determined mother’s motions for the issuance of special findings to enable the child [Jose] to petition for special immigrant juvenile status should have been granted:

… [I]t is declared that Jose … has been legally committed to, or placed under the custody of, an individual appointed by a State or juvenile court, and it is found that Jose …  is unmarried and under 21 years of age, that reunification with one of his parents is not viable due to parental abandonment, and that it would not be in his best interests to return to Honduras, his previous country of nationality or last habitual residence. Matter of Gomez v Sibrian, 2015 NY Slip Op 08165, 2nd Dept 11-12-15

 

Two-Justice Dissent Argued Termination of Father’s Parental Rights Was Not In the Best Interests of the Child

The Second Department, over a two-justice dissent, determined father had abandoned the child and his parental rights were properly terminated. The dissent argued that, because of new facts revealed after the order appealed from was issued, and because the mother’s parental rights were not terminated, severing the child from his father was not in the child’s best interests:

FROM THE DISSENT

A petition to terminate parental rights on the ground of abandonment may be denied where, despite evidence that the parent abandoned the child during the six-month period prior to the filing of the petition, the record nevertheless demonstrates that termination would not be in the best interests of the child … . Here, my colleagues in the majority conclude that the father’s failure to take prompt action to assert paternity after the mother informed him that he might be the child’s father in the six months prior to the filing of the petition constituted abandonment. However, that finding does not mandate granting the petition to terminate parental rights where, as here, new facts arose after the filing of the petition, and after the issuance of the order appealed from, which demonstrate that termination of the father’s parental rights is not in the child’s best interests … . * * *

.[T]here are no facts in this record which indicate that a relationship between the child and his father will be harmful to the child … . * * * It appears from this record that terminating the father’s parental rights would serve no purpose other than to sever any potential ties between the child and his father and paternal kindred. Matter of Jake W.E. (Jonathan S.), 2015 NY Slip Op 07840, 2nd Dept 10-28-15

 

 

Children’s Remaining in Foster Care Until Father’s Release from Prison Was Not a Sufficient Plan for the Children’s Future, Permanent Neglect Finding Proper

The Second Department determined a permanent neglect finding was proper. Children’s remaining in foster care until father’s release from prison was not a sufficient plan for the children’s future:

A parent’s incarceration does not obviate the obligation to develop a “realistic and feasible” plan for the children’s future … . A plan for children to remain in foster care throughout a parent’s incarceration and for a period of time thereafter as necessary to establish suitable living arrangements for the children is not a viable plan to secure permanency for the children … . Thus, “[t]he failure of an incarcerated parent to provide any realistic and feasible’ alternative to having the children remain in foster care until the parent’s release from prison . . . supports a finding of permanent neglect” … .

Here, the father failed to provide any feasible plan for the subject children other than continued foster care until after he was released from prison and had time to “get on [his] feet.” Accordingly, despite the petitioner’s diligent efforts to encourage and strengthen the parental relationship, the father failed to adequately plan for the children’s future, and the Family Court’s finding of permanent neglect was supported by clear and convincing evidence … . Matter of Jenna K. (Jeremy K.), 2015 NY Slip Op 07843, 2nd Dept 10-28-15

 

Custody Should Not Have Been Awarded to Nonparent

The Third Department, reversing Family Court, determined custody of mother’s child should not have been awarded to mother’s sister. Mother was being treated for mental illness and had lost her home. The relationship between mother and sister was acrimonious. Mother, however, despite her difficulties, had tried to maintain her relationship with her child and the child was described well-adjusted, doing well in school, and involved in activities. The court explained the heavy burden placed on a nonparent seeking custody:

“A determination of whether extraordinary circumstances exist takes into consideration such factors as the length of time the child has resided with the nonparent, the quality of the child’s relationships with the parent and the nonparent, the prior disruption of the parent’s custody, separation from siblings and any neglect or abdication of responsibilities by the parent” … . Generally, such a finding is rare and exists where the extraordinary circumstances “drastically affect the welfare of the child” … .

In our view, no such finding was warranted here. When this proceeding was commenced, the child had been residing with petitioner in her home — located more than an hour drive from the mother — for only a few days. During her 10-day hospitalization, the mother continued to attempt to maintain contact with the child. When she was released from the hospital, the mother’s attempts to see the child were hindered not only by her health issues, the loss of her home, distance and lack of transportation, but also by the extreme and unfortunate animosity between the mother and petitioner. The mother did not neglect her responsibilities; rather, during the pendency of the hearing, she was obtaining regular mental health treatment, sought help and obtained a suitable apartment and car, and was employed as an adjunct professor. While a health crisis of any sort can be frightening and upsetting to a child, the record does not reflect that the child’s relationship with her mother was any worse than the one she shared with petitioner. Notably, Family Court recognized that the child was “a wonderful young lady[, well-adjusted, very knowledgeable, intelligent, doing well in school [and] involved in activities,” and that the mother “played a significant role and ha[d] done a very good job of raising” the child. Matter of Lina Y. v Audra Z., 2015 NY Slip Op 07708, 3rd Dept 10-22-15

 

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