The Fourth Department, over a two-justice dissent, determined Family Court properly awarded custody to mother, despite the wishes of the adolescent child. The dissenters argued that great weight should have been given to the expressed wishes of the child. Sheridan v Sheridan, 2015 NY Slip Op 05301, 4th Dept 6-19-15
The Second Department determined Family Court properly refused to admit evidence of the child’s out-of-court statements in an abuse and neglect proceeding because the statements were not corroborated:
A child’s prior out-of-court statements may provide the basis for a finding of abuse or neglect, provided that these hearsay statements are corroborated so as to ensure their reliability … . Any other evidence tending to support the reliability of the child’s previous statements shall be sufficient corroboration (see Family Ct Act § 1046[a][vi]…). There is a threshold of reliability that the evidence must meet … . The Family Court has considerable discretion to decide whether the child’s out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated … . Here, the Family Court did not improvidently exercise its discretion in determining that the statements of the subject child Anthony W. were insufficient to corroborate the statements of the subject child Sally W. as to the alleged sexual abuse perpetrated upon her. Matter of Gerald W. (Anne R.), 2015 NY Slip Op 05198, 2nd Dept 6-17-15
The Second Department determined Family Court properly denied the petition to vacate an acknowledgment of paternity. Petitioner demonstrated his signing of the acknowledgment was based upon a mistake of fact. Although petitioner was not the child’s biological father, the best interests of the child, with whom petitioner had lived from birth for six years, mandated denial of the petition. The court explained the relevant law:
A party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must prove that it was signed by reason of fraud, duress, or material mistake of fact (see Family Ct Act § 516-a[b][ii]). If the petitioner meets this burden, the court is required to conduct a further inquiry to determine whether the petitioner should be estopped, in accordance with the child’s best interests, from challenging paternity … . * * *
The Family Court providently exercised its discretion in concluding that the petitioner should be equitably estopped from denying paternity. The purpose of equitable estoppel “is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position” … . Thus, “a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity” … . “The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship” … . The paramount concern in such cases “has been and continues to be the best interests of the child” … .
Here, the hearing evidence demonstrated that the petitioner lived with the child from the time of her birth in March 2005, until 2011. After the parties separated in 2011, the petitioner continued to visit with the child approximately one to two times per week. According to the petitioner, the child is free to visit with him whenever she wants. Although the child knows that the petitioner is not her biological father, she does not refer to or think of anyone else as her father. The child has a strong relationship with the petitioner and wants to spend more time with him and his son, whom she regards as her brother. Accordingly, the evidence established that, up to the time of the hearing, there had been a recognized and operative parent-child relationship between the petitioner and the child in existence all of the child’s life … . Matter of Luis Hugo O. v Paola O., 2015 NY Slip Op 05195, 2nd Dept 6-17-15
The Fourth Department determined the child’s moving in with father after becoming emancipated by leaving mother’s residence revived his unemancipated status, thereby entitling father to child support. The child left mother to avoid her rules, including rules prohibiting the use of drugs. After living with friends for a while, the child sought treatment for drug addiction. It was thereafter the child moved in with father:
“[T]he case law makes clear that a child’s unemancipated status may be revived provided there has been a sufficient change in circumstances to warrant the corresponding change in status” … . “Permitting reversion to unemancipated status is consistent with the statutory principle that parents are responsible for the support of their dependent children until the children attain the age of 21” … . Generally, a return to the parents’ custody and control has been deemed sufficient to revive a child’s unemancipated status … . Although most of the cases concerning a revival of a child’s unemancipated status involve a child’s return to the home that he or she abandoned versus the home of the noncustodial parent …, we conclude that the return to the noncustodial parent’s supervision and control does not preclude a revival of unemancipated status inasmuch as it has generally been held that “the move from one parent’s home to the other parent’s home does not constitute emancipation as th[e] child is neither self-supporting nor free from parental control” … . In this case, the child did not immediately move in with the father after flouting the mother’s rules … . Rather, he engaged in treatment for his addiction and then resumed living under the supervision and control of a parent while attending school. Baker v Baker, 2015 NY Slip Op 05045, 4th Dept 6-12-15
The Third Department, in a full-fledged opinion by Justice McCarthy, reversed Family Court’s finding that father abused and neglected his infant daughter (Nora). The trial was essentially a “battle of experts” [Patno was the Department of Social Service’s expert; Scheller was father’s expert]. The Third Department determined the Department of Social Services had made out a prima facie case of abuse and neglect (expert testimony that Nora’s physical condition was caused by shaking) but, under a weight of the evidence analysis, father’s expert provided the best explanation for Nora’s injuries—an explanation which did not implicate father. The court noted that father did not exhibit any characteristics associated with an abusive parent and father’s expert’s “testimony, which was consistent with conclusions of Nora’s treating physicians and her medical records in crucial respects, offered a reasonable and persuasive account of how Nora’s symptoms — and lack thereof — better supported his … diagnosis:”
…. [T]he uncontested evidence showed that Nora did not suffer external trauma …, broken bones or neck injuries …, and she had a one-sided retinal hemorrhage … . Further, the father, a professional pediatric nurse, exhibited none of the characteristics thought to be diagnostically predictive of a perpetrator of abusive head trauma …, and he consistently denied that he mishandled Nora … . The single characteristic that Nora was fussy — while perhaps almost always present in victims of abusive head trauma — fails to meaningfully support Patno’s diagnosis over Scheller’s diagnosis, given the vast number of fussy infants who are never physically abused. Further, while Patno testified that abusive head trauma from shaking often results in a triad of symptoms that include subdural hematoma, retinal hemorrhaging and brain swelling …, the medical evidence uniformly established that Nora did not suffer from brain swelling. Additionally, Scheller and Adamo — petitioner’s witness — were substantially in agreement that Nora’s single-sided retinal hemorrhaging could be the specific result of the subdural hematoma, rather than a direct result of any potential trauma. Patno failed to offer any explanation regarding the merits of such a theory or even an opinion as to whether she believed that such one-sided retinal hemorrhaging was the direct result of shaking … . Accordingly, given Patno’s lack of specificity regarding the one-sided retinal hemorrhage, it is unclear whether she believed that evidence of a fussy infant who had suffered a subdural hematoma was, by itself, sufficient to diagnose abusive head trauma. Matter of Natalie AA. (Kyle AA.), 2015 NY Slip Op 04889, 3rd Dept 6-11-15
The Third Department determined that alternating physical custody between the parents on a yearly basis, requiring the child to attend two different schools, was not in the child’s best interests:
Here, based on the totality of the circumstances, we disagree with Family Court’s determination, and find that alternating physical custody on a yearly basis is not in the child’s best interests … . Although presenting differing arguments, both parents, as well as the attorney for the child, argue against this disposition on this appeal. As a result of the alternating school schedule in place previously, the child has missed activities and field trips at both schools, and this can only be expected to increase. The superintendent of the school district in Canada where the child’s school is located opined in a letter that the child’s social, emotional and academic development would best be served by attending only one school, and we agree. Despite the hardships and separation necessarily arising from the physical distance between the two parents, it is the child’s own stability that takes increasing precedence as he ages … . Matter of Nelson v Perea, 2014 NY Slip Op 04091, 3rd Dept 6-5-14
The Third Department determined father’s status as an untreated sex offender, together with mother’s willingness to leave the children with father unsupervised, was sufficient to establish neglect:
Petitioner bore the burden of establishing, by a preponderance of the evidence, “first that the children’s ‘physical, mental or emotional condition [was]; impaired or [was]; in imminent danger of becoming impaired’ and, second, that such harm was directly attributable to a failure on the part of [the]; respondent ‘to exercise a minimum degree of care . . . in providing the [children]; with proper supervision or guardianship'” … . While actual harm is not required, the imminent danger of harm “must be near or impending, not merely possible” … . “[A];dditionally, there must be a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child’s impairment or imminent danger of impairment” … .
…[W]e agree with Family Court that the evidence submitted regarding the facts underlying the father’s convictions for abusing young children in his care is sufficient to distinguish this case from Matter of Afton C. (James C.) (17 NY3d at 11…)..
In addition, petitioner also introduced evidence that the father did not complete the sex offender treatment he had been ordered to undergo after his first conviction, that he did not participate in any sex offender treatment while in prison for his second conviction and that the individual counseling he received from a minister while in prison and upon his release did not qualify as appropriate sex offender treatment. Matter of Lillian SS, 2014 NY Slip Op 04101, 3rd Dept 6-5-14
The Third Department determined that the child’s out-of-court stated alleged sexual touching (by Makenzie) were not sufficiently corroborated. The findings of neglect and derivative neglect based on the statements were reversed:
While the out-of-court statements made by a child relating to any allegations of abuse or neglect are admissible in Family Ct Act article 10 proceedings, they must be corroborated in order to “be sufficient to make a fact-finding of abuse or neglect” (Family Ct Act § 1046 [a]…). The purpose of this requirement is to establish the reliability of the hearsay statements, and Family Court has considerable discretion to determine the sufficiency of corroborative evidence … . Such a statement “may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient” … . Nevertheless, we conclude that petitioner failed to satisfy its burden here.
Family Court’s conclusion, based upon our decision in Matter of Brandon UU. (193 AD2d 835 [1993]), that sufficient corroboration existed because the child pointed to the area where she claimed respondent had pinched her, is misplaced. The determination in Matter of Brandon UU. (supra) was based on the child’s consistent account of sexual abuse coupled with the expert testimony that the child was being truthful (id. at 837). Here, there was no expert testimony and the child’s demonstration, without more, is part of the out-of-court statement itself and insufficient as corroboration … .
Likewise, there is no merit to petitioner’s argument that the child’s repetition of consistent accounts of the abuse to the grandmother, social worker and detective serve as sufficient corroboration. It is well settled that “repetition of an accusation by a child does not corroborate [that]; child’s prior account” … . The lack of any proof “validating the child’s account or relating any of her past or present conduct or characteristics to the alleged sexual abuse” requires reversal of the finding of neglect as to Makenzie on the ground that the out-of-court statements were not sufficiently corroborated … . Matter of Katrina CC, 2014 NY Slip Op 04094, 3rd Dept 6-5-14
The Second Department determined Family Court erred when it held that a finding of neglect of one child (Akasha) by consent could not be used to demonstrate the neglect of another child (William, Jr.). The court went on to explain the criteria for a derivative neglect finding (not all of which is quoted here):
The entry of a finding of neglect of one child may not be made without a factual basis, even upon consent … . Thus, entry of a finding of neglect as to a child clearly constitutes proof that that child was neglected, even if the order was entered upon consent … . Accordingly, such a fact-finding order is admissible with respect to the issue of whether the parent derivatively neglected another child (see Family Ct Act § 1046[a];[i]…). Consequently, the Family Court erred in holding that the neglect finding as to Akasha was not admissible evidence in the neglect proceeding as to William, Jr. The neglect finding as to Akasha was proof that the mother neglected Akasha and was, thus, admissible evidence in the proceeding regarding William, Jr., even though the finding as to Akasha was entered on the mother’s consent.
Further, while the proof of the neglect as to Akasha was admissible with respect to this proceeding alleging derivative neglect of William, Jr., “there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings”… . Rather, “the focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood. * * * Matter of William N, 2014 NY Slip Op 04012, 2nd Dept 6-4-14
The Court of Appeals determined the Appellate Division properly found that the “unwarned” statement made by 11-year-old Delroy should have been suppressed. The statement was made in Delroy’s apartment when a police officer asked him “what happened?”. Under the circumstances, “a reasonable 11 year old would not have felt free to leave” at the time the question was asked. Therefore the question amounted to “custodial interrogation” in the absence of the Miranda warnings. The Court of Appeals, disagreeing with the Appellate Division, ruled the error was not harmless because the statement undermined Delroy’s defense of justification. There was no question Delroy stabbed the 12-year-old complainant. But questions were raised by the trial testimony whether the stabbing was in self-defense. With respect to proof burdens for “harmless error” and the justification defense, the Court of Appeals explained:
A trial court’s error involving a constitutionally protected right is harmless beyond a reasonable doubt only if “there is no reasonable possibility that the error might have contributed to defendant’s conviction” … . “The People must show that any error was harmless beyond a reasonable doubt [and] [i]n deciding whether the People have met this burden, we consider both the overall strength of the case against defendant and the importance to that case of the improperly admitted evidence” … .
The record shows that while there was no doubt that Delroy had stabbed the complainant, there was evidence supporting Delroy’s justification defense. “The defense of justification . . . permits one to use deadly physical force on another when one reasonably believes that deadly physical force is being used or imminently will be used by such other person” … . The People bear the burden of disproving the defense of justification beyond a reasonable doubt … . * * *
…[T]he People have not demonstrated that there is no reasonable possibility that the wrongly admitted evidence might have contributed to the guilty finding. Matter of Delroy S., 2015 NY Slip Op 04676, CtApp 6-4-15
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