The Fourth Department determined the County Department of Human Services should not have been held in contempt without a hearing for failing to return the respondent (a person in need of supervision) to foster care. The Department had raised a defense, i.e., the Department had tried but was unable to place the respondent, and was therefore entitled to a hearing. Matter of Andrew B., 2015 NY Slip Op 03999, 4th Dept 5-8-15
The Court of Appeals, over a three-judge dissent, determined the abused child’s uncle, as a person legally responsible (PLR) for the child’s care, was a proper “respondent” in the child abuse/neglect proceeding. The uncle argued he was not a PLR for the abused child and Family Court therefore did not have jurisdiction over the abuse/neglect proceeding against him:
“…[T]he common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents” … . We held that deciding whether “a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case” … . We listed factors to be considered when determining who is a PLR, which include (1) “the frequency and nature of the contact,” (2) “the nature and extent of the control exercised by the respondent over the child’s environment,” (3) “the duration of the respondent’s contact with the child,” and (4) “the respondent’s relationship to the child’s parents” … . Matter of Trenasia J. (Frank J.), 2015 NY Slip Op 03765, CtApp 5-7-15
The Second Department explained the equitable distribution principles applied to separate property which has not been demonstrated to have appreciated during marriage.
Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property” … . The defendant overcame the presumption that funds he deposited into the account of Clark Development, LLC (hereinafter CD, LLC), a company he formed during the marriage, were marital funds by presenting sufficient evidence that the source of the funds was separate property … . Moreover, although appreciation of, or increase in the value of, separate property is considered separate property, “except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse” (Domestic Relations Law § 236[B][1][d][3]), the plaintiff failed to carry her burden of establishing that CD, LLC, as the defendant’s separate property, appreciated in value during the parties’ marriage … . Accordingly, the Supreme Court erred in directing that the plaintiff was to receive a distributive award relating to CD, LLC. Clark v Clark, 2014 NY Slip Op 03224, 2nd Dept 5-7-14
Similar issue and result in Turco v Turco, 2014 NY Slip Op 03257, 2nd Dept 5-7-14
The Third Department determined there were questions of fact whether non-parent petitioner could show extraordinary circumstances warranting the award of custody of a child petitioner cared for for years. Family Court had awarded custody to the father and mother without a hearing:
Under settled law, “a parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances” … , and the nonparent bears the “heavy burden of establishing extraordinary circumstances to overcome the [parent’s] superior right to custody” … . “The pertinent factors to be considered in determining whether extraordinary circumstances exist include the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role” …, as well as “the child’s psychological bonding and attachments, the prior disruption of the parent[‘s] custody, separation from siblings and potential harm to the child” and other relevant factors … . A “consent order, standing alone, does not constitute a judicial finding [or an admission] of . . . extraordinary circumstances” … . However, we have stressed that, “with few exceptions, an evidentiary hearing is necessary to determine whether extraordinary circumstances exist” … . Matter of Liz WW. v Shakeria XX., 2015 NY Slip Op 03888, 3rd Dept 5-7-15
The Second Department determined the divorce action and the right to equitable distribution did not abate upon the husband’s death. The final adjudication of divorce had been made before the husband’s death and death did not abate a vested right to equitable distribution:
Contrary to the contention of the executor of the husband’s estate, the actions did not abate upon the death of the husband. The Supreme Court had made the final adjudication of divorce before the husband’s death, but had not performed the ” mere ministerial act of entering the final judgment'” … . Moreover, a cause of action for equitable distribution does not abate upon the death of a spouse … . ” Consequently, if a party dies in possession of a vested right to equitable distribution, and that right has been asserted during the party’s lifetime in an action in a court of this State, that right survives the party’s death and may be asserted by the estate'” … . Charasz v Rozenblum, 2015 NY Slip Op 03798, 2nd Dept 5-6-15
The Second Department, in a full-fledged opinion by Justice Dillon, determined Family Court should have granted appellant’s request for DNA testing before finding that appellant had abandoned the child (thereby freeing the child for adoption). Appellant did not know whether he was the father of the child and there was no evidence of his paternity. Appellant feared the abandonment finding would negatively affect his relationship with his four children. The Second Department held the abandonment finding could not be made unless appellant is the father, so whether appellant is the father must be determined first:
We are asked to address whether a Family Court may render a determination that a putative father has abandoned a child so as to free the child for adoption, if there is not first a threshold finding that the putative father is, in fact, the father of the child. For the reasons set forth below, we conclude that where paternity is not ascertained in fact or by law, the Family Court may not conclusorily find that a respondent is not a “consent father,” or that his consent, while otherwise required, has been forfeited by reason of his abandonment of the child. Matter of Heaven A. A. (Tyrone W.–Stephanie A.), 2015 NY Slip Op 03833, 2nd Dept 5-6-15
The Fourth Department noted that an Article 78/prohibition action is a proper vehicle for raising double jeopardy as a bar to a prosecution. Defendant was charged with two counts of Driving While Intoxicated (DWI) and one count of Driving While Ability Impaired (DWAI). In a bench trial, defendant was acquitted of one count of DWI and the second count of DWI, of which defendant was initially convicted, was subsequently dismissed pursuant to a post-trial motion because of the legal insufficiency of the evidence. Under these circumstances, because the DWAI count was never considered in the bench trial, a second trial on that charge alone does not violate the double jeopardy prohibition:
“[I]n a bench trial, it is presumed that the Judge sitting as the trier of fact made his [or her] decision based upon appropriate legal criteria” … . Here, the court, upon acquitting defendant of common-law DWI, would have applied the “acquit-first” rule …, and next considered DWI, per se, before reaching DWAI as a lesser included offense under either count of DWI … . Inasmuch as the court convicted defendant of the count charging DWI, per se, it could not have reached the lesser included offense of DWAI. Consequently, we conclude that “double jeopardy concerns . . . are not present in the case at hand . . . [because] the People here d[o] not seek to retry defendant on the count[, i.e., DWI, per se, or common-law DWI] of which he was acquitted at the first trial. Rather, the only count at issue in the retrial [will be] the lesser [DWAI] charge for which the [court did not] reach a verdict. At no point during the retrial [will] defendant [be] in jeopardy of conviction of the greater offense. Thus, there [i]s no constitutional double jeopardy bar to [a] second trial” on the lesser included offense of DWAI … . Matter of Case v Sedita, 2015 NY Slip Op 03630, 4th Dept 5-1-15
The Third Department, in a full-fledged opinion by Justice Rose, indicated its prior rulings should not be followed and determined that juvenile delinquency adjudications may not be considered under risk factors 8 and 9 (criminal history) for the purpose of assessing points in the risk assessment instrument (RAI). However the adjudications may be considered in determining whether to depart from the recommended risk level:
Relying on People v Campbell (98 AD3d 5 [2d Dept 2012], lv denied 20 NY3d 853 [2012]), defendant contended that Family Ct Act § 381.2 (1) precluded the use of the juvenile delinquency adjudication and, without the 30 points for criminal history, defendant would be presumptively classified as a risk level I sex offender. County Court, citing our previous decisions in People v Pride (37 AD3d 957 [2007], lv denied 8 NY3d 812 [2007]) and People v Dort (18 AD3d 23 [2005], lv denied 4 NY3d 885 [2005]), denied defendant’s challenge to the 30-point assessment and classified defendant as a risk level II sex offender. Defendant appeals.
We reverse. We agree with the holding of People v Campbell (supra) that the Board “exceeded its authority by adopting that portion of the [Sex Offender Registration Act] Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender’s criminal history” (id. at 12; see Family Ct Act § 380.1 [1]…). Contrary to the People’s argument, the fact that the points at issue in Campbell were assessed under risk factor 8 of the RAI does not require a different conclusion because both risk factor 8 and risk factor 9 fall within the criminal history category of the RAI. To the extent that our prior decisions suggest that juvenile delinquency adjudications may be considered crimes for purposes of the RAI, we note that the conflict between the Guidelines and the Family Ct Act was not raised in those cases and they should no longer be followed. Our ruling is limited, however, to precluding the use of juvenile delinquency adjudications to assess points for criminal history under the RAI, and we do not hold that the facts underlying a juvenile delinquency adjudication may not be considered when determining whether to depart from the recommended risk level … . People v Shaffer, 2015 NY Slip Op 03586, 3rd Dept 4-30-15
The Third Department affirmed the child abuse/severe abuse/neglect findings against respondent and noted that the precise dates of the abuse need not be proven in a Family Court Act Article 10 proceeding. The Third Department further determined that the exclusion of the respondent during one of the children’s (Aleria’s) testimony, while allowing the respondent’s attorney to be present, was a proper exercise of discretion:
…[E]vidence of the exact dates that the abuse and/or neglect occurred is not required in order for petitioner to sustain its applicable burdens of proof in Family Ct Act article 10 proceedings (see Family Ct Act § 1046 [b] [i], [ii]). Rather, a child’s ability to recall details — including, among other things, dates and times — goes to the credibility and weight given to the child’s disclosures. In this regard, “Family Court’s findings are entitled to great deference especially where the critical evidence is testimonial, in light of the court’s ability to assess the witnesses’ credibility, and should generally not be disturbed absent a conclusion that they lack a sound and substantial basis in the record” … . The record before us contains corroborated allegations of horrendous, repeated acts of sexual and physical abuse perpetrated by respondent against his children and stepdaughter and, thus, we see no reason to depart from Family Court’s finding that the allegations of severe abuse, abuse, neglect and derivative abuse and neglect were sufficiently proven.
Nor do we find that Family Court abused its discretion when it excluded respondent from the courtroom during Aleria’s testimony. Although respondent is entitled to due process, he does not have an absolute right to be present at all stages of this civil proceeding … . “As such, in the context of a Family Ct Act article 10 proceeding, this Court has concluded that, ‘[i]n balancing the due process right of the accused with the mental and emotional well-being of the child, a court may . . . exclude the respondent during the child’s testimony but allow his [or her] attorney to be present and question the child'” … . Accordingly, after having properly balanced respondent’s interests with the impact of his presence in the courtroom on Aleria’s emotional state and well-being, Family Court’s decision to permit her to testify outside of respondent’s presence was an appropriate exercise of discretion. Matter of Aleria KK. (Ralph MM.), 2015 NY Slip Op 03590, 3rd Dept 4-30-15
In a decision affirming Family Court’s findings in a juvenile delinquency proceeding, the Second Department noted that a judge has the discretion to recess the proceedings to allow a conference between a lawyer and the witness:
“[T]he decision to grant a recess and to allow a conference between a lawyer and a testifying witness falls within the broad discretion allowed a trial court in its management of a trial” … . Contrary to the appellant’s contention, the fact-finding court providently exercised its discretion in granting the presentment agency’s application for a mid-testimony conference with a testifying witness … . Matter of Isaiah D., 2015 NY Slip Op 03528, 2nd Dept 4-29-15
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