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Mother’s Parental Rights Should Not Have Been Terminated Based Upon a Violation of a Suspended Judgment—Best Interests of the Child Should Have Been Considered

The Second Department determined Family Court erred when it terminated the mother's parental rights after she violated a suspended judgment (imposing drug-related conditions) without taking into account the best interests of the child.  The evidence supported the conclusion that terminating the mother's parental rights was not in the best interests of the child:

The Family Court may revoke a suspended judgment after a hearing if it finds, by a preponderance of the evidence adduced, that the parent failed to comply with one or more of the conditions of the suspended judgment … . The best interests of the child, however, remain relevant at all stages of a permanent neglect proceeding, including at the revocation of a suspended judgment … . Here, the preponderance of the evidence supported a finding that the mother failed to comply with certain conditions set forth in the suspended judgment. However, the evidence did not support the Family Court's conclusion that it was in the best interest of the child to terminate the mother's parental rights.  Matter of Phoenix DA …, 2014 NY Slip OP 08638, 2nd Dept 12-10-14

 

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Court Should Not Have Denied Biological Mother’s Petition to Enforce the Visitation Provision in a Surrender Agreement Without Making a Finding Based Upon the Best Interests of the Child—Failure to Make Such a Finding Rendered the Record Insufficient for Review—Matter Sent Back for a Hearing

The Second Department, over a dissent, determined that Family Court should not have denied the biological mother's petition to enforce the provision of a surrender agreement which allowed her to visit the child without a finding that the requested visitation is not in the best interests of the child.  Finding the record inadequate for review, the Second Department sent the matter back for a hearing:

Social Services Law § 383-c(2)(b) permits the parties to a judicial surrender agreement to provide for a biological parent's continued communication or contact with the child. In determining whether to approve the agreement, the court must determine whether continued contact with the biological parent would be in the child's best interests (see Social Services Law § 383-c[2][b]). A provision providing for visitation with the biological parent is not legally enforceable unless the court that approved the surrender agreement states, in a written order, that the provision would be in the child's best interests (see Domestic Relations Law § 112-b[2]; cf. Social Services Law § 383-c[2][b]). Even then, in an enforcement proceeding pursuant to Domestic Relations Law § 112-b, a court “shall not enforce an order under this section unless it finds that the enforcement is in the child's best interests” (Domestic Relations Law § 112-b[4]). In other words, there must be a best interests judicial determination both at the time the surrender agreement is accepted and at the time that enforcement of a visitation provision is sought … . * * *

Here, the Family Court dismissed the petition without affording the biological mother an opportunity to establish that enforcement of the visitation provision of the surrender agreement would be in the child's best interests. Thus, there is no hearing record for us to review. Further, while it may be true that the Family Court was aware of facts and circumstances that may have supported a determination that enforcement of the visitation provision would not have been in the child's best interests, the record before us does not contain those facts. Accordingly, we are unable to conduct effective appellate review of the court's determination or to make required findings on our own  … . Matter of Jayden A, 2014 NY Slip Op 08637, 2nd Dept 12-10-14

 

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Gun Found In Juvenile’s Shoe (After Juvenile Was Told to Remove His Shoes) Should Have Been Suppressed—Juvenile Could Not Be Arrested and Detained for a Violation (Disorderly Conduct Is Not a Crime) and Nothing More than a Frisk Is Justified During a Temporary Detention Pending the Arrival of a Juvenile’s Parents

The Second Department, over a two-justice dissent, determined that the search of the 15-year-old appellant (Jamal) was illegal and the gun found in appellant's shoe should have been suppressed.  The appellant, who had already been searched twice, was being wrongfully detained on a disorderly conduct charge (a violation, not a crime) at the time he was told to take off his shoes:

CPL 140.10 permits a police officer to arrest a person for any “offense” that is committed in the officer's presence. The term “offense” is broadly defined to include conduct for which a sentence to a term of imprisonment or a fine is provided by state or local law (see Penal Law § 10.00 [1]). Family Court Act § 305.2(2), however, provides that “[a]n officer may take a child under the age of sixteen into custody without a warrant in cases in which he [or she] may arrest a person for a crime . . . .” The term “crime” includes only misdemeanors and felonies, not violations (see Penal Law § 10.00[6]). Accordingly, a search may be conducted where a juvenile is taken into custody for conduct which, if committed by an adult, would constitute a crime … . As disorderly conduct is not a crime, Family Court Act § 305.2(2) prohibited Jamal's warrantless arrest for that offense … . Based on this record, it is clear that upon learning that Jamal was a juvenile the police nonetheless kept him under arrest with no statutory authority for doing so. * * *

…[W]hen Jamal was being held pending his parents' arrival, he was under temporary detention as opposed to arrest. “A temporary detention justifies only a frisk, not a full-fledged search” … . The removal of Jamal's shoes was far more intrusive than a frisk or a patdown … . We find no merit to the presentment agency's argument that safety required the removal of Jamal's shoes. “The touchstone of the Fourth Amendment is reasonableness . . .” … . Considerations of safety provide no justification in this case where Jamal was continuously in police custody and had been searched twice before being directed to remove his shoes. It is of no moment that Jamal was directed to remove his shoes pursuant to an alleged standard procedure. “[A]n unreasonable search is not somehow rendered reasonable, and therefore constitutionally permissible, by the mere fact that a departmental procedure was followed” … . The standard of reasonableness still applies … . We recognize that in appropriate cases law enforcement officers are authorized to employ reasonable measures to guard against detainees' self-infliction of harm. Such reasonable measures may include the removal of belts and shoelaces … . Nonetheless, the removal of Jamal's shoes cannot be justified as a protective measure where, as noted above, he had been twice searched by police officers who had no reason to expect that he had “anything on him” or otherwise posed a danger. Matter of Jamal S, 2014 NY Slip Op 08470, 1st Dept 12-4-14

 

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The Arresting Officer’s Stepping in Front of the Appellant As the Appellant Walked Away Was Not a Seizure But Rather Was a Continuation of the Officer’s Common-Law Right to Inquire

The Second Department determined the police officer who followed appellant as appellant walked away from him and then stepped in front of appellant acted properly.  Suppression of the handgun seized from appellant after a pat down search, therefore, was not required. The arresting officer responded to a call describing a disturbance at a restaurant.  The officer saw the appellant leave the restaurant and noticed a bulge in appellant's jacket pocket.  The officer then began following the appellant and eventually caught up to him (and stepped in front of him).  The court found that the officer's stepping in front of the appellant was not a seizure, but rather was a continuation of the officer's common-law right to inquire:

Contrary to the appellant's contention, the totality of the circumstances gave the officers a founded suspicion that criminal activity was afoot, which gave rise to the officers' common-law right to inquire … . While the appellant is correct that, initially, he had a constitutional right ” to be let alone' and to refuse to respond to police inquiry” …, under the circumstances presented here, the arresting officer's conduct in following and stepping in front of the appellant in an attempt to engage him was a continuation of the officer's own common-law right to inquire, not a seizure … . Hence, the conduct of the arresting officer in this regard was not improper.

Moreover, although the appellant continued to walk away from the arresting officer, the arresting officer kept pace with him, and ultimately approached him until they were only an arm's length away from each other. As such, it was proper for the officer to request that the appellant make his hands visible as a reasonable precautionary measure … . Additionally, from this close proximity, the officer observed what appeared to be the outline of a firearm in the appellant's right jacket pocket, which appeared to be pointed at the officer, placing him in fear for his safety. The officer thus properly conducted a limited pat-down search to determine if the bulge was a weapon … . Matter of Shariff H, 2014 NY Slip Op 08435, 2nd Dept 12-3-14

 

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Grand Larceny 4th and Criminal Possession of Stolen Property 4th, as Those Statutes Relate to Credit/Debit Cards, Require the Theft and Possession of the Physical Card Itself, Not Merely the Unauthorized Use of the Credit/Debit Card Number—Other Offenses in the Penal Law Criminalize the Unauthorized Use of Credit/Debit Card Numbers

The Second Department, in a full-fledged opinion by Justice Balkin, determined that the crimes of grand larceny (4th degree) and criminal possession of stolen property (4th degree), as they relate to credit/debit cards, require the theft and possession of the physical card, not simply the use of the card number to make a purchase.  [The 1st Department recently reached the opposite conclusion.]  Here the juvenile (Luis) used his grandfather’s debit card number to purchase sneakers.  The Second Department noted that there are provisions of the penal law which criminalize the unauthorized use of credit/debit card numbers (without physical possession of the card), but those crimes were not charged here:

…[G]iven the text of the provisions at issue, the context of the law and its development over the years, we agree with Luis and the Presentment Agency that “debit card” as used in Penal Law §§ 155.30(4) and 165.45(2) means the physical card, not the intangible account information associated with it. We also agree that, at bottom, this case involves errors made when the petition was drafted. Luis’s acts undoubtedly violated provisions of the Penal Law, but not the provisions charged in the petition.

A person who appropriates account information is not immune from punishment. The legislature has enacted laws to protect account information, in addition to the laws relating to the cards themselves. Specifically, in chapter 619 of the Laws of 2002, the legislature amended or added sections to various statutes in order to address the problem of people who engage in identity theft or use other people’s personal information without authorization. That legislation added the crimes of identity theft in the third, second, and first degrees (Penal Law §§ 190.78, 190.79, and 190.80), as well as unlawful possession of personal identification information in the third, second, and first degrees (Penal Law §§ 190.81, 190.82, and 190.83). Later, the legislature added “aggravated identity theft” (Penal Law § 190.80-a; see L 2008, ch 226, § 2). These provisions, similar to the provisions at issue in this case, make the criminal possession of account information a completed crime; no proof is required that the information was actually used.

One of the crimes added in 2002, unlawful possession of personal identification information in the third degree (Penal Law § 190.81), directly proscribes what Luis did in this case when he used his grandfather’s debit card number, without permission, to buy sneakers * * *:

Thus, just as the legislature added credit cards to the penal provisions of the law when the use of credit cards became widespread, and added debit cards when the use of debit cards became widespread, it also added provisions related to the unauthorized possession of the intangible account information when technology demanded.

We also note that crimes relating to the theft or possession of cards or account information are distinct from the crimes committed when the cards or account information are subsequently misused; the subsequent misuse is an additional crime, distinct from the taking of the card or the obtaining of the numbers … . Matter of Luis C, 2014 NY Slip Op 08428, 2nd Dept 12-3-14

 

Criteria for Termination of Parental Rights on the Ground of Mental Illness Explained

In affirming the termination of petitioner’s parental rights upon the ground of mental illness, the Third Department explained the criteria:

To terminate parental rights upon the ground of mental illness, the petitioning agency must demonstrate, by clear and convincing evidence, that the parent is — and for the foreseeable future will continue to be — unable to provide proper and adequate care for his or her [child] by reason of that parent’s mental illness. Such a showing, in turn, must include testimony from appropriate medical witnesses particularizing how the parent’s mental illness affects his or her present and future ability to care for the [child]” … . Matter of Kaitlyn X …, 2014 NY Slip Op 08272, 3rd Dept 11-26-14

 

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Separation and Modification Agreements Did Not Comply with the Child Support Standards Act

The Third Department determined the parties’ separation and modification agreements did not comply with the Child Support Standards Act (CSSA).  The court explained the flaws:

If an agreement or stipulation entered into between the parties “deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel” (Domestic Relations Law § 240 [1-b] [h]…).

Here, the original separation and settlement agreement indicated that the parties had been advised of the provisions of the CSSA and that the amount of child support calculated in compliance therewith would be presumptively valid; the agreement further set forth the applicable statutory percentage for three children (29%) and the parties’ respective incomes and indicated that the husband’s child support obligation would be adjusted upon the cessation of the agreed-upon maintenance payments (see Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]). The agreement did not, however, indicate what the presumptive amount of child support would be, nor did it set forth the reasons for deviating therefrom. Similar deficiencies exist with respect to the provisions governing the parties’ pro rata share of childcare and medical expenses and, to our analysis, none of the foregoing deficiencies was cured by the subsequent modification agreement. Although the modification agreement acknowledged a departure from the presumptive pro rata share of each party’s childcare expenses and purported to explain the basis for the deviation therefrom, the agreement was silent as to what the presumptive pro rata percentages would be under the CSSA and failed to set forth the income and other financial data supporting the basis for such deviation. Malone v Malone, 2014 NY Slip Op 08281, 3rd Dept 11-26-14

 

Family Court Properly Issued an Order of Protection Against the 13-Year-Old Respondent In Favor of Petitioner’s 13-Year-Old Daughter Pursuant to Family Court Act 812—Respondent and Daughter Had Been Boyfriend-Girlfriend and Had Been Intimate But They Were Not Members of the Same Family or Household and Never Lived Together—Respondent Fit Within the Expanded Definition of “Member of the Same Family or Household” As the Phrase Is Used In Family Court Act 812, Thereby Providing Family Court with Jurisdiction Over the Proceedings

The Third Department determined Family Court had jurisdiction over a family offense proceeding brought by a parent on behalf of her daughter against the respondent seeking an order of protection.  Both the daughter and the respondent were 13 years old. They had been boyfriend-girlfriend off and on since fifth grade.  There had been some sexual activity.  Family Court Act 812 gives Family Court jurisdiction over family offenses by a respondent against a “member of the same family or household.”  The legislature, in 2008, expanded the definition of “member of the same family or household” to include “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time.”  Respondent fit within that expanded definition:

The daughter testified that she and respondent had been classmates since kindergarten and began a “boyfriend-girlfriend” relationship in fifth grade that continued, on and off, through eighth grade. At first, the relationship consisted of holding hands, kissing and exchanging texts and phone calls. By sixth grade, according to the daughter, respondent was texting or calling her 5 or 10 times daily and becoming jealous, “controlling” and “isolat[ing].” The daughter testified that she and respondent had some sexual contact in sixth grade, including an incident in which he allegedly caused her to touch his erect penis at school in the presence of other students, and another in which he put his hand down her shirt to touch her breasts without her permission. According to the daughter, she and respondent did not date for most of seventh grade. However, late in that year they began talking again, and in eighth grade they met twice, each time at respondent’s request. The daughter testified that during the first encounter, she reluctantly acceded to respondent’s request for oral sex, believing that he would “leave [her] alone” if she did so. When they met the second time, they had sexual intercourse; the daughter testified that she asked respondent to stop and that he complied at first, but then continued. The daughter distanced herself from respondent after these events, and reported them to petitioner after she began having suicidal thoughts… . Matter of Samantha L v Luis J, 2014 NY Slip Op 08073, 3rd Dept 11-20-14

 

Unwed Birth Father’s Consent for Adoption Properly Required

The Second Department affirmed Family Court’s ruling that the unwed birth father’s consent for adoption was required:

There is no basis to disturb the Family Court’s determination that the unwed birth father was a person whose consent was required in order for the child to be adopted. The Family Court found that during the six-month period prior to the subject child’s placement with the appellants upon her birth, the unwed birth father promptly asserted his interest in the child, manifested his ability and willingness to assume custody of the child, and provided financial and moral support to the birth mother … . Matter of Baby Girl N …, 2014 NY Slip Op 08028, 2nd Dept 11-19-14

 

Nonparents Did Not Demonstrate Standing to Bring Petition to Adopt

The Second Department determined the nonparents’ petition to adopt was properly denied:

“As between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances” … . The burden of proof is on the nonparent to prove such extraordinary circumstances … . Absent proof of such extraordinary circumstances, an inquiry into the best interests of the child is not triggered … . Here, the Family Court properly determined that the nonparent petitioners, whose petition to adopt the subject child was correctly denied …, failed, in this custody proceeding, to allege the existence of extraordinary circumstances. Accordingly, the Family Court properly granted the father’s motion to dismiss their custody petition for lack of standing … . Matter of Santiago v Henderson, 2014 NY Slip Op 08033, 2nd Dept 11-19-14

 

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