You are here: / Family Law
,

Although a Prima Facie Case of Abuse and Neglect Was Made Out, Father’s Expert Provided Persuasive Evidence the Child’s Injuries Were Not the Result of Abuse—The Abuse and Neglect Findings Were Not, Therefore, Supported by a Preponderance of the Evidence

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

 

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

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

 

,

Child’s Out-of-Court Statements Alleging Sexual Touching Were Not Corroborated—the Child’s Repeating the Same Allegations to Several Persons Does Not Constitute Corroboration—Neglect and Derivative Neglect Findings Reversed

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

 

Alternating Custody on a Yearly Basis, Requiring the Child to Attend Two Schools, Was Not In the Child’s Best Interests

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

 

,

Finding of Neglect of One Child by Consent Is Admissible In a Derivative Neglect Proceeding Re: Another Child—Criteria for Derivative Neglect Explained

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

 

, , ,

Failure to Suppress Statement Was Not Harmless Error Because the Statement Undermined the Justification Defense—Proof Burdens for “Harmless Error” and the Justification Defense Explained

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

 

Untimely Initial Appearance Does Not Mandate Dismissal as Long as the Right to a Speedy Fact-Finding Hearing Is Not Violated

The Third Department determined the failure to conduct an initial appearance within ten days of the filing of the juvenile delinquency petition (charging the equivalent of assault and criminal possession of a weapon) did not require dismissal of the petition. The court attempted to conduct the initial appearance within ten days but respondent failed to appear and no timeliness objection was raised when the initial appearance was conducted five days later.  The Third Department explained that the ten-day requirement is flexible, but the requirement that a fact-finding hearing be conducted within 60 days of the initial appearance is mandatory:

Respondent first contends that dismissal of the June 2013 petition is required because Family Court failed to conduct a timely initial appearance. Because he was not detained, Family Ct Act § 320.2 (1) required that the initial appearance occur “as soon as practicable and, absent good cause shown, within [10] days after” the filing of the petition. The initial appearance, “like the arraignment of an adult charged with a crime, is the process by which the court obtains jurisdiction over the minor, determines if detention is warranted, and sets the dates for further proceedings” (… see Family Ct Act § 320.4). Dismissal is appropriate where a respondent is deprived of his or her right to a speedy fact-finding hearing, a hearing that must occur “not more than [60] days after the conclusion of the initial appearance” if he or she is not confined (Family Ct Act § 340.1 [2]; see Family Ct Act §§ 310.2, 332.1 [8]). A “similar protected status” is not afforded to the initial appearance itself, although “dismissal without prejudice may be an appropriate remedy” if it is not held in a timely manner … . To put it succinctly, dismissal is not mandated in the wake of an untimely initial appearance so long as respondent’s right to a speedy fact-finding hearing is not violated … . Matter of Daniel B., 2015 NY Slip Op 04698, 3rd Dept 6-4-15

 

Grandparents Did Not Have Standing to Bring a Petition for Visitation

The Second Department determined Family Court properly dismissed the grandparents’ petition for visitation with the grandchildren without a hearing. Family Court properly determined the grandparents did not have standing to bring the petition because no triable issues of fact were raised in the submitted papers. The standing question is determined by applying equitable principles re: the nature of the grandparents’ relationship with the children and the nature and basis of the parents’ objection to visitation:

When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry” … . “First, it must find that the grandparent has standing, based on, inter alia, equitable considerations” … . “If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child” … .

“In considering whether a grandparent has standing to petition for visitation based upon circumstances show[ing] that conditions exist which equity would see fit to intervene’ (Domestic Relations Law § 72[1]), an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,’ among other factors” … . Additionally, the court must consider ” the nature and basis of the parents’ objection to visitation'” … . “A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers” … .

Here, the Family Court properly denied the grandparents’ petition for visitation and dismissed the proceeding, without a hearing, based on their lack of standing. The Family Court, considering all of the relevant circumstances of this case, properly found that this is not a matter in which it would be equitable to confer standing upon the grandparents … . Matter of Moskowitz v Moskowitz, 2015 NY Slip Op 04490, 2nd Dept 5-27-15

 

Non-Parent Petitioner, the “Nongestational” Spouse In a Same-Sex Marriage, Did Not Have Standing to Seek Custody

Family Court properly dismissed a nonparent’s action for custody for lack of standing.  [Apparently (not spelled out) petitioner is the spouse of the biological parent of the child in a same-sex marriage.] … “[P]etitioner, who is neither an adoptive parent nor a biological parent of the subject child, failed to allege the existence of extraordinary circumstances that would establish her standing to seek custody”. Petitioner did not show “the parent has relinquished [his/her] right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances” … . In addition, petitioner, as the nongestational spouse in a same-sex marriage, could not establish she was a “parent” within the meaning of Family Court Act 417 and Domestic Relations Law 24. The statutes refer to a biological relationship, not legal status. Matter of Paczkowski v Paczkowski, 2015 NY Slip Op 04325, 2nd Dept 5-20-15

 

No Substantial Basis in the Record for Custody Determination

After the parents’ deaths the maternal and paternal grandmothers petitioned for custody of the child. The Second Department reversed Family Court, which had awarded custody to the maternal grandmother after a three-day hearing, and granted custody to the paternal grandmother, finding no sound and substantial basis for Family Court’s ruling in the record:

The essential consideration in any custody dispute is the best interests of the child … . In determining the best interests of the child, the court must evaluate the totality of the circumstances… . This Court’s authority in custody determinations is as broad as that of the hearing court …, and while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we “would be seriously remiss if, simply in deference to the finding of a Trial Judge,” we allowed a custody determination to stand where it lacks a sound and substantial basis in the record … .  Matter of Iams v Estate of Iams, 2013 NY Slip Op 03482, 2nd Dept, 5-15-13

 

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy