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Plaintiff Could Not Show Justifiable Reliance Upon Alleged Misrepresentations in a Stipulation

The Second Department determined the plaintiff, who was seeking to vacate portions of a so-ordered stipulation in a custody matter, failed to show the stipulation was the result of fraud.  In particular, plaintiff failed to show justifiable reliance upon any alleged misrepresentation because attachments to the stipulation reflected the actual facts:

As the party seeking to set aside the stipulation, the plaintiff had the burden of showing that the stipulation was the result of fraud … . “A cause of action alleging fraud requires a plaintiff to establish a misrepresentation or omission of material fact which the defendant knew was false, that the misrepresentation was made to induce the plaintiff’s reliance, the plaintiff’s justifiable reliance on the misrepresentation or material omission, and a resulting injury” … .

In light of the attachments provided with the stipulation, the plaintiff failed to establish the element of justifiable reliance. Where the plaintiff ” has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations'” … . Cervera v Bressler, 2015 NY Slip Op 02441, 2nd Dept 3-25-15

 

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No “Extraordinary Circumstances” Existed to Justify Granting Primary Custody of Child to Grandparents

The Fourth Department, in a full-fledged opinion by Justice Centra, determined Family Court should not have granted primary custody of the child to the grandparents.  Although the grandparents had played a primary role in the child’s care for 10 years, with the mother’s permission and participation, the “extraordinary circumstances” described by the Court of Appeals as necessary to justify awarding custody to nonparents were not present:

As the Court of Appeals held in the seminal case of Matter of Bennett v Jeffreys (40 NY2d 543, 544), “[t]he State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances.” The Court thereafter held that, “[s]o long as the parental rights have not been forfeited by gross misconduct . . . or other behavior evincing utter indifference and irresponsibility . .. , the natural parent may not be supplanted” (Matter of Male Infant L., 61 NY2d 420, 427). “The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child” … .

…[T]he arrangement between petitioners [the grandparents] and the mother since shortly after the child’s birth and for 10 years thereafter was akin to a joint custody arrangement with petitioners having primary physical custody of the child and the mother visitation. Petitioners established that they took on the bulk of the responsibility for the child’s financial support and education. There was no showing by petitioners, however, that the mother was unfit or that she surrendered or abandoned her child … . The question then is whether they established “other equivalent but rare extraordinary circumstance[s] which would drastically affect the welfare of the child” … .

As we have held, “[w]hat proof is sufficient to establish such equivalent but rare extraordinary circumstances cannot be precisely measured” … . “[T]he fact that [a] parent agreed that a nonparent should have physical custody of the child or placed the child in the custody of a nonparent is not sufficient, by itself, to deprive the parent of custody” … . Here, while the mother allowed petitioners to have primary physical custody of the child for a prolonged period, there were no other factors to show the existence of extraordinary circumstances … . The record establishes that the child is psychologically attached to both petitioners and the mother, and there was no evidence that removing the child from petitioners’ primary custody would result in “psychological trauma . . . grave enough to threaten destruction of the child” … . The evidence at the hearing showed that the child exhibited some signs of stress after May 2012, but the record as a whole, including the Lincoln hearing, supports the conclusion that the child was stressed because of the family conflict, and would not suffer if the mother had custody of the child. Matter of Suarez v Williams, 2015 NY Slip Op 02293, 4th Dept 3-20-15

 

Extraordinary Circumstances Justified Award of Primary Physical Custody to Nonparent–Criteria Described

In affirming Family Court’s award of primary physical custody to the grandmother, the Third Department explained the “extraordinary circumstances” criteria for awarding primary physical custody to a nonparent:

Family Court’s finding of extraordinary circumstances is supported by the record. It is clear and settled that 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” … . “It is the nonparent’s burden to establish extraordinary circumstances and, when that burden is met, custody is determined based upon the child’s best interests” … . 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 biological parent allowed such custody to continue without trying to assume the primary parental role” … , an analysis that considers “the cumulative effect of all issues present in a given case” … . Matter of Curless v McLarney, 2015 NY Slip Op 01680, 3rd Dept 2-26-15

 

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Relatively Low Degree of Corroboration Required to Admit Child’s Out-of-Court Statements Re: Abuse or Neglect

The Third Department, in a custody proceeding, explained the level of corroboration required to render a child’s out-of-court statements admissible:

Both the mother and the attorney for the children contend that the testimony of the father’s psychiatrist … concerning the older child’s out-of-court statements are inadmissible hearsay. We disagree. A child’s out-of-court statements are admissible in a custody dispute if the statements relate to abuse or neglect, provided that such statements are corroborated by other evidence … . “The degree of corroboration required is relatively low” … , and the hearing court “is accorded considerable discretion in determining whether there is sufficient corroboration” … . Heather B v Daniel B, 2015 NY Slip Op 01506, 3rd Dept 2-19-15

 

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Maltreatment Finding Not Supported by Substantial Evidence

The Third Department determined substantial evidence did not support the Office of Children and Family Services finding of maltreatment.  Petitioner spanked the child for eating soap while petitioner was bathing the child.  Petitioner explained what had happened to the child’s day-care provider, who then reported the incident to the Central Register of Child Abuse and Maltreatment:

“‘At an administrative hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established by a fair preponderance of the evidence'” … . Specifically, “‘[t]o 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 parent’s failure to exercise a minimum degree of care'” … . In our consideration of the underlying determination, “our focus is whether the determination is rational and supported by substantial evidence” … . * * *

A parent is “entitled to use reasonable physical force to promote discipline” … , however, the application of such force may not “exceed[] the threshold of reasonableness” … . Although a single instance of excessive corporal punishment can suffice for a finding of maltreatment …, here, the record lacks substantial evidence demonstrating that petitioner’s conduct “impaired or was in imminent danger of impairing [the child’s] physical, mental or emotional condition” … . Matter of Maurizio XX v New Y\ork State Off of Children and Family Services, 2015 NY Slip Op 01512, 3rd Dept 2-19-15

 

Family Court Did Not Inform Respondent of His Rights and Did Not Conduct an Adequate Colloquy—PINS Adjudication Reversed

The Third Department reversed respondent’s adjudication as a PINS because Family Court did not advise respondent of his rights and the colloquy prior to Family Court’s acceptance of the consent finding was inadequate:

Family Court erred by failing to advise respondent of his rights. Pursuant to statute, at the initial appearance and at the commencement of any hearing concerning a PINS petition, Family Court must advise the respondent and his or her parent of the respondent’s rights to remain silent and to be represented by counsel of his or her choosing or an assigned attorney (see Family Ct Act § 741 [a]…). Here, the court did not mention these rights at the first appearance on the PINS petition, at which time the court accepted respondent’s consent to a PINS finding, nor at the dispositional hearing. The court’s failure to advise respondent of these rights constitutes reversible error … . Additionally, the court’s colloquy prior to accepting that consent finding was inadequate; respondent merely answered “[y]es” when asked if he had a basic understanding of the proceeding and if he consented to a PINS finding, without any further discussion. To ensure that a PINS admission is knowingly and intelligently entered into, in a proper colloquy “[t]he respondent should at least state and admit the precise act, or acts, which constitutes the admission, and should be made aware on the record of the consequences, the dispositional alternatives, and the waiver of specific rights,” as well as give an assurance of the lack of coercion and that he or she consulted with counsel (Merril Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 741 at 98…). Due to the inadequate colloquy and lack of advisement of rights, reversal is required, respondent’s adjudication as a PINS is vacated and the matter is returned to the preadmission stage. Matter of Aaron UU …, 2015 NY Slip Op 01505, 3rd Dept 2-19-15

 

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Appeal Should Not Have Been Dismissed as Moot Because the Underlying Order of Protection Had Expired—There Are Significant Negative Consequences of the Issuance of an Order of Protection Which May Affect Appellant in the Future

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the appeal by respondent, who had been found to have committed a Family Offense and against whom an order of protection had been issued, should not have been dismissed as moot because the order of protection had expired.  The Court of Appeals explained that the issuance of the order of protection could have significant negative future consequences for the respondent:

“[i]n general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” …. The ability of an appellate decision to directly and immediately impact the parties’ rights and interests is among the most important aspects of the mootness analysis, for otherwise the analysis might turn on inchoate or speculative matters, making mootness an unwieldy doctrine of a thousand “what ifs.” On the other hand, even where the resolution of an appeal may not immediately relieve a party from a currently ongoing court-ordered penalty or obligation to pay a judgment, the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal … .

In this case, the expiration of the order of protection does not moot the appeal because the order still imposes significant enduring consequences upon respondent, who may receive relief from those consequences upon a favorable appellate decision. Because the order of protection on its face strongly suggests that respondent committed a family offense, the court in a future criminal case or Family Court proceeding would likely rely on the order to enhance a sentence or adverse civil adjudication against respondent. ** * *In the face of the substantial probability that the order of protection will prompt severely deleterious future legal rulings against respondent, an appellate decision in his favor will directly vindicate his interest in avoiding that consequence of the order.

The order of protection has other potential legal consequences that render it susceptible to appellate review. For example, in a future legal matter, an opposing party might be permitted to use the order of protection to impeach respondent’s credibility …. . Furthermore, since the order of protection remains in a police computer database, albeit not in an active file (see Executive Law §§ 221-a [1]; 221-a [6]; see also 9 NYCRR 486.2 [g]), respondent may face additional law enforcement scrutiny and an increased likelihood of arrest in certain encounters with the police (see 9 NYCRR 486.3 [n] [declaring information obtained from the database to be relevant to the decision to arrest an individual]).[FN2]

Beyond its legal consequences, the order of protection places a severe stigma on respondent, and he can escape that stigma by prevailing on appeal … . Matter of Veronica P v Radcliff A, 2015 NY Slip Op 01300, CtApp 2-13-15

 

Mother’s Actions and Mental Health Issues Did Not Warrant a Finding of Neglect

The Fourth Department determined mother's actions and mental health issues did not support Family Court's neglect-finding.  The mother had left her child with appropriate caregivers and kept in touch, although she was absent longer than expected:

“[A] party seeking to establish neglect must show, by a preponderance of the evidence . . . , first, that [the] child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care in providing the child with proper supervision or guardianship” (…see Family Ct Act §§ 1012 [f] [i]; 1046 [b] [i]). “Where a motion is made by the respondent at the close of the petitioner's case to dismiss a neglect petition, [the court] must determine whether the petitioner presented a prima facie case of neglect . . . , viewing the evidence in [the] light most favorable to the petitioner and affording it the benefit of every inference which could be reasonably drawn from the proof presented” … .

We conclude that, viewing the evidence in the light most favorable to petitioner, the evidence established that the mother left the child with appropriate caregivers, who agreed to care for the child for several days; however, she left the state for approximately 24 hours, and she failed to provide a medical authorization in case of an emergency. Further, although the male caregiver was unable to reach the mother during the confrontation with the mother's grandmother, petitioner's evidence established that the mother had borrowed a telephone and had remained in contact with the caregivers each day that she was away. The evidence also established that the mother was inexperienced as a parent and that the couple with whom she lived was assisting her with parenting skills and in obtaining appropriate housing, as well as medical and other benefits.

We conclude that petitioner failed to establish that, as a result of the mother's actions, the child was in imminent danger, i.e., “near or impending [danger], not merely possible” … . We further conclude that petitioner failed to present any evidence connecting the mother's alleged mental health condition to any actual or potential harm to the child … . We therefore conclude that petitioner failed to establish by a preponderance of the evidence that the child's physical, mental or emotional condition had been impaired or was in imminent danger of becoming impaired as a result of the mother's failure to exercise a minimum degree of care for the child … . Matter of Lacey-Sophia TR, 2015 NY Slip Op 01123, 4th Dept 2-6-15


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Family Court Should Have Inquired More Deeply Into Mother’s Finances Before Ordering the Matter to Proceed Without Counsel for Mother

The Second Department determined Family Court should have inquired into mother's financial situation in more depth before finding that she was not eligible for assigned counsel and proceeding in the absence of counsel:

Given the mother's statements indicating that she lacked the funds to retain private counsel, the Family Court should have inquired further into the mother's financial circumstances, including, but not limited to, inquiring about her expenses, to determine whether she was eligible for assigned counsel … .

Furthermore, “[w]aiver of the right to counsel must be founded on an explicit and intentional relinquishment which is supported by knowledge and a clear understanding of the right” … . “In order to determine whether a party is validly waiving the right to counsel, the court must conduct a searching inquiry of the party who wishes to waive that right and thus proceed pro se. While there is no rigid formula to be followed in such an inquiry, and the approach is flexible, the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel” … .

Here, the record is clear that the mother did not wish to proceed pro se, but was forced to do so in light of her alleged inability to retain counsel after numerous adjournments and a lengthy delay in the proceedings … . The deprivation of the mother's fundamental right to counsel requires reversal, without regard to the merits of her position …, especially where, as here, the record demonstrates that the mother did not have a basic understanding of court proceedings … . Matter of Pugh v Pugh, 2015 NY Slip Op 00887, 2nd Dept 2-4-15


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Evidence Did Not Support Finding of Neglect Based Upon Mother’s Mental Illness and Failure to Take Medication

The Second Department determined the evidence was not sufficient to demonstrate mother's neglect based upon her mental illness and her failure to take medication:

” A finding of neglect may be predicated upon proof that a child's physical, mental, or emotional condition is in imminent danger of becoming impaired as a result of a parent's mental illness'” (… see Family Ct Act § 1012[f][i]). “However, proof of mental illness alone will not support a finding of neglect'; the evidence must establish a causal connection between the parent's condition, and actual or potential harm to the children'” … .

Here, based on our evaluation of the record, and giving deference to the Family Court's credibility determinations …, we find that the petitioner failed to establish, by a preponderance of the evidence, the existence of a causal connection between the mother's mental illness and actual or potential harm to the subject child … . * * *

“Proof of ongoing mental illness and the failure to follow through with aftercare medication, which results in a parent's inability to care for her child in the foreseeable future, is a sufficient basis for a finding of neglect” … . Here, although there was evidence that the mother stopped taking medication after her discharge from Beth Israel, the evidence was insufficient to establish that the mother was unable to care for the child during that period. Matter of Nialani T, 2015 NY Slip Op 00894, 2nd Dept 2-4-15


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