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Under the Circumstances, the Filing of a Family Offense Petition Against the Father and the Issuance of an Order of Protection Made the Children Dependent on a Juvenile Court, a Prerequisite for Special Immigrant Juvenile Status

The Second Department determined Family Court erred when it found the children were not dependent on a juvenile court, a prerequisite for special immigrant juvenile status (SIJS).  The mother had filed a family offense proceeding against the father and the allegations in the petition had been substantiated:

Contrary to the Family Court’s determination, in support of their motion, the children established that they were dependent upon a juvenile court. While guardianship, adoption, and custody are not directly or presently at issue in this family offense proceeding …, under the particular circumstances of this case, the children have become dependent upon the Family Court. The children’s mother has filed a family offense petition against the father seeking an order of protection, alleging that the father has assaulted her and the children. In their motion, the children claimed that they have been neglected by the father based on allegations including physical, mental, and verbal abuse. After conducting an investigation, the Administration for Children’s Services concluded that certain of these allegations were substantiated. On May 6, 2013, shortly after the children made their motion, the Family Court issued an order of protection, effective for two years, directing the father, inter alia, to stay away from the mother and the children.

While a family offense proceeding, or the mere issuance of an order of protection, will not always give rise to a determination that a child has become dependent upon a juvenile court, based on the particular circumstances of this case, we conclude that such a determination is warranted here. As we have previously observed, the intended beneficiaries of the SIJS provisions of the Immigration and Nationality Act are limited to ” those juveniles for whom it was created, namely abandoned, neglected, or abused children'” … . Thus, while, for example, a child support proceeding will not give rise to a determination that a child has become dependent upon a juvenile court (see Matter of Hei Ting C., 109 AD3d 100), under the proper circumstances, a child involved in a family offense proceeding involving allegations of abuse or neglect may properly be the subject of such a determination as an intended beneficiary of the SIJS provisions. Matter of Fifo v Fifo, 2015 NY Slip Op 02762, 2nd Dept 4-1-15

 

 

Duration of Supervised Visits Cannot Be Left Up to Supervising Agency

The Fourth Department noted that Family Court failed to set up a proper visitation schedule because the court left the duration of the visits up to the supervising agency:

Although the court’s determination that visitation must be supervised is supported by the record …, we note that the court set no minimum time period for the monthly visitation and left the duration of visitation, “up to a maximum of eight hours,” to be determined solely based on the availability of “any authorized agency that supervises visitation.” Consequently, we agree with the mother that the court “erred in failing to set a supervised visitation schedule, implicitly leaving it to the supervisor to determine” the duration of each visit … . We therefore modify the order accordingly, and we remit the matter to Family Court to determine the duration of visitation… . Matter of Ordona v Cothern, 2015 NY Slip Op 02652, 4th Dept 3-27-15

 

Family Court Abused Its Discretion by Failing to Consider the Least Restrictive Alternative Disposition in a Juvenile Delinquency Proceeding

The Fourth Department determined Family Court had not considered the least restrictive available alternatives for disposition in a non-felony juvenile delinquency proceeding.  Family Court had placed the juvenile in the custody of the Department of Social Services for 12 months for each of three adjudications:

It is well settled that, when determining an appropriate disposition in a juvenile delinquency case involving acts that are not felonies, “the court shall order the least restrictive available alternative” and “shall consider the needs and best interests of the respondent as well as the need for protection of the community” (Family Ct Act § 352.2 [2] [a]…). Although “[t]he court has broad discretion in determining the appropriate disposition in juvenile delinquency cases” …, we agree with respondent that the court abused its discretion under the circumstances presented here. The evidence presented at the dispositional hearing and the predispositional and probation update reports prepared in conjunction with that hearing establish that respondent’s home environment was “toxic” and he suffered from mental health issues that required treatment. In addition, the update to the original report indicated that respondent had recently been staying with a family friend who had known him since birth, that the friend had petitioned for custody of respondent, and that there had been no new arrests during that time. The update also indicated that the friend was able to devote significant time to supervising respondent, and that the friend resided with a woman who managed a residential home. In addition, both the family friend and the woman with whom he lived testified at the dispositional hearing that they could help with respondent’s supervision. Consequently, “we agree with [respondent] that the court erred in failing to consider the least restrictive available alternative in fashioning an appropriate dispositional order” … . We therefore modify the order by vacating the disposition and, in light of the lapse of time since the order was entered, we remit the matter to Family Court for a new dispositional hearing. Matter of Jacob A.T., 2015 NY Slip Op 02658, 4th Dept 3-27-15

 

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Referee’s Authority Exceeded—Authority Comes from Consent of the Parties

The Second Department determined the referee had exceeded his authority in a custody proceeding:

“A referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon the consent of the parties, except in limited circumstances,” which are not applicable here … . Here, the parties did not consent to the determination of any issues by a referee, and the order of reference directed the referee to hear and report (see CPLR 4317[a]). Absent the parties’ consent, the referee had the power only to hear and report his findings (see CPLR 4317[a]…). Thus, the referee exceeded his authority in signing an order to show cause pursuant to which the defendant, in effect, sought leave to submit a motion to modify a prior order of custody and to stay the enforcement of an order entered in a related custody proceeding commenced in the Family Court, pending her appeal of that order. The referee further exceeded his authority in temporarily restraining the enforcement of the Family Court’s order and all proceedings in the Family Court pending the determination of that branch of the defendant’s motion which was for a stay … .  Albert v Albert, 2015 NY Slip Op 02439, 2nd Dept 3-25-15

 

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Summary Judgment May Be Based Upon an Unpled Affirmative Defense/Oral Waiver May Be Effective in the Face of a “Written Waiver” Requirement in the Contract

The First Department noted that a motion for summary judgment can be based upon an unpleaded affirmative defense in the absence of surprise and determined there was a question of fact whether an oral waiver was effective in the face of a contract provision requiring any waiver to be in writing:

Defendants’ failure to plead the affirmative defense of waiver in their answer did not preclude them from asserting such defense for the first time on summary judgment, since “[t]here is no prohibition against moving for summary judgment based on an unpleaded defense where the opposing party is not taken by surprise and does not suffer prejudice as a result” … . * * *

Although the management agreement contained a provision that any waivers must be in writing, “a contracting party may orally waive enforcement of a contract term notwithstanding a provision to the contrary in the agreement. Such waiver may be evinced by words or conduct, including partial performance”… . Matthew Adam Props., Inc. v The United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, 2015 NY Slip Op 02419, 1st Dept 3-24-15

 

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Court Should Have Taken Judicial Notice of Father’s False Allegations in Prior Proceedings in the Same Court/Court Should Not Have Drawn an Adverse Inference from Mother’s Failure to Call a Witness without Informing Mother of Its Intent to Do So

The Second Department, in reversing Family Court finding that mother committed the family offense of assault, determined Family Court should have taken judicial notice of father’s false allegations in custody proceedings in the same court and should not have drawn an adverse inference from the mother’s failure to call a witness without giving mother the opportunity to explain the witness’ absence:

The Family Court improperly rejected the mother’s request that it take judicial notice of the determination in the parties’ prior custody proceeding, in the same court, in which the father admittedly made false allegations. That proceeding, and the court’s findings therein regarding the father, were relevant to the court’s assessment of the father’s credibility in this matter. Accordingly, the court improvidently exercised its discretion in declining to take judicial notice of the prior custody proceeding … .

Additionally, the Family Court erred in drawing a negative inference based on the mother’s failure to call the child’s maternal grandmother as a witness. ” A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party'” … . The court sua sponte drew a negative inference based on the mother’s failure to call the grandmother as a witness, and failed to advise the mother that it intended to do so … . Matter of Spooner-Boyke v Charles, 2015 NY Slip Op 02132, 2nd Dept 3-18-15

 

Nursing License Not Marital Property/Criteria Explained

The Second Department determined Supreme Court properly found that plaintiff’s nursing license was not marital property.  The Court explained the relevant analytical criteria:

Although the enhanced earnings from academic degrees and professional licenses attained during the marriage are subject to equitable distribution, it is incumbent upon the nontitled party seeking a distributive share of such assets to demonstrate a substantial contribution to the titled party’s acquisition of that marital asset. Where only modest contributions are made by the nontitled spouse toward the other spouse’s attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse’s own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity … . Here, there is no evidence that the defendant made a substantial contribution to the plaintiff’s acquisition of her nursing degree. There is no evidence that the defendant made career sacrifices or assumed a disproportionate share of household work as a consequence of the plaintiff’s education; his contributions were minor… . Badwal v Badwal. 2015 NY Slip Op 01910, 2nd Dept 3-11-15

 

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Corroboration Requirements for Child’s Out-of-Court Statements Described

The Second Department agreed with Family Court’s ruling that the child’s out-of-court statements were sufficiently corroborated to be allowed in evidence.  The court explained the analytical criteria:

“A child’s prior out-of-court statements may provide the basis for a finding of abuse, provided that these hearsay statements are corroborated, so as to ensure their reliability'” … . “Any other evidence tending to support the reliability of the previous statements . . . shall be sufficient corroboration” (Family Ct Act § 1046[a][vi]). ” The Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated'” … . “The Family Court’s credibility findings must be accorded considerable deference on appeal” … . Matter of Zeeva M. (Abraham M.), 2015 NY Slip Op 01948, 2nd Dept 3-11-15

 

Failure to Cooperate In Formulating Mental Health Treatment Plan for Child Constituted Neglec

The Second Department affirmed Family Court’s finding of neglect based upon the mother’s failure to cooperate in formulating a plan for mental health treatment of the child.  The court explained the analytical criteria:

To establish neglect based upon a parent’s failure to provide adequate medical care, a petitioner must prove, by a preponderance of the evidence, that the child’s physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, and that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in supplying the child with adequate medical care, though financially able to do so (see Family Ct Act §§ 1012[f][i][A]…). A parent’s unwillingness to follow a recommended course of psychiatric treatment which results in the impairment of a child’s emotional health may support a finding of neglect … . Even so, in the context of a petition alleging medical neglect, “the court’s role is not as surrogate parent and the inquiry is not posed in absolute terms of whether the parent has made the right’ or wrong’ decision” … . Rather, in deciding whether a parent has been neglectful by depriving his or her child of adequate medical care, the court must determine whether the parent has provided an acceptable course of treatment in light of all of the surrounding circumstances … .

Here, the mother’s refusal to consent to the course of medical treatment proposed by mental health professionals would not, by itself, have justified a finding of medical neglect. Nonetheless, the credible evidence established that the mother did not merely disagree with the course of medical treatment proposed for [the child], but also refused to cooperate in formulating any appropriate treatment … . Matter of Jaelin L. (Kimrenee C.), 2015 NY Slip Op 01946, 2nd Dept 3-11-15

 

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Criteria for Administrative Expungement of a Report of Child Abuse or Maltreatment Explained

In affirming the dismissal of a petition seeking expungement of a “child abuse or maltreatment report” maintained by the NYS Central Register of Child Abuse or Maltreatment, the Second Department explained the relevant analytical criteria:

At an administrative expungement hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established by a preponderance of the evidence … . “It is the function of the administrative agency, not the reviewing court, to weigh the evidence or assess the credibility of the witnesses” … .

Judicial review of a determination that a report of maltreatment has been substantiated is limited to whether the determination is supported by substantial evidence in the record … . Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … .

To establish that maltreatment occurred, the agency must show that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of a parent or other person legally responsible for his or her care to exercise a minimum degree of care … .  Matter of Iacono v New York State Cent. Register of N.Y. State Off. of Children & Family Servs. 2015 NY Slip Op 01802, 2nd Dept 3-4-15

 

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