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FAMILY COURT HAD THE AUTHORITY TO ORDER VISITATION WITH THE CHILDREN’S FORMER FOSTER MOTHER; A STRONG DISSENT ARGUED THE COURT DID NOT HAVE THE POWER TO ORDER VISITATION WITH A “LEGAL STRANGER” (FIRST DEPT). ​

The First Department, over an extensive and comprehensive dissent, determined Family Court properly allowed visitation with the children by their former foster mother. The dissent argued the court did not have the power to order visitation with the former foster mother, a “legal stranger:”

Commonly, visitation plans for children in foster care involve parents, grandparents or siblings, all of whom have standing to commence visitation proceedings. However, in this case, there was no visitation petition or proceeding before the court at the time of the permanency hearing. Rather,the court ordered visitation between the children and the former foster mother in order to advance the children’s “well-being” as it is required to do under Family Court Act § 1086. To accomplish that, the court gave special attention to the unique, undisputed circumstances of these children: (1) the children suffered from PTSD and other mental health issues following removal from their biological mother in 2016; (2) they each improved remarkably during the nearly six years they were cared for by the former foster mother; (3) removal from her care in December 2021 was traumatic for them; (4) at the time of the order, the children had only been in their current foster home for a few months; (5) ACS [Administration for Children’s Services] and the foster care agency had previously consented to and facilitated visits with the former foster mother for approximately two years; and (6) the children remained strongly bonded to her as the only adult who had been a consistent positive presence in their lives at the time of the 2023 permanency hearing that resulted in the order.

… [A]s Family Court explained on the record, “there is no legal path where the children end up in [the] care” of the former foster mother. However, the court expressed concern that discontinuing all contact with her at this time would be contrary to their well-being. The court noted that it was troubled “that we didn’t have more details [presented at the hearing] about the children’s therapy and medication” and that there was no testimony that “cutting off all contact with [the former foster mother] . . . is therapeutically beneficial.” Under these circumstances, Family Court’s continuation of visitation with the former foster mother was an appropriate exercise of its authority under Family Court Act § 1089, was tailored to the particular circumstances of these children, and was in keeping with the legislative goal of ensuring foster children’s well-being. Matter of AL.C., 2024 NY Slip Op 03799, First Dept 7-11-24

Practice Point: Here Family Court properly ordered visitation with the children by their former foster mother, based primarily upon the children’s improvement while in her care and the strong bond between her and the children. The dissent argued the court did not have the authority to order visitation with a “legal stranger.”

 

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MOTHER BROUGHT A PETITION TO MODIFY CUSTODY AND ALLEGED SHE DID NOT CONSENT TO THE STIPULATION UNDERLYING THE EXISTING CUSTODY ORDER; BECAUSE THE STIPULATION WAS NOT IN THE RECORD AND ITS TERMS WERE NOT IN THE CUSTODY ORDER, A HEARING WAS REQUIRED (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing was required after mother alleged in her petition to modify custody she did not consent to the stipulation underlying the custody order. The stipulation was not part of the record and the custody order did not recount the terms of the agreement:

Pursuant to CPLR 2104, an agreement between parties is binding against them where, as here, it was reduced to the form of an order and entered. Since “settlement agreements must abide by the principles of contract law, ‘for an enforceable agreement to exist, all material terms must be set forth and there must be a manifestation of mutual assent'” … . CPLR 2104 does not require the parties or the court to place on the record an agreement between the parties that is reduced to an order. However, failing to do so makes the agreement open to collateral litigation … . Here, in light of the mother’s averment that she did not consent to the terms of the custody order, the fact that the terms of the settlement were not placed on the record, and the fact that there was no writing subscribed by the parties, there is an unresolved issue as to whether there was a manifestation of mutual assent to the terms set forth in the custody order. Matter of Izzo v Salzarulo, 2024 NY Slip Op 03751, Second Dept 7-11-24

Practice Point: If a custody order is based upon a stipulation which was not reduced to writing and the terms of the stipulation are not in the order, the order is subject to collateral litigation, here based on mother’s allegation she did not agree to the terms.

 

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EVIDENCE THE CHILD HAD RECANTED THE CHILD’S TESTIMONY THAT FATHER SEXUALLY ABUSED THE CHILD WAS VAGUE AND WAS NOT SUFFICIENT TO REBUT THE ABUSE FINDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the recantation evidence did rebut the prima facie evidence that father had sexually abused the child:

… [P]etitioner established by a preponderance of the evidence that the father sexually abused the child. The child’s testimony during the fact-finding hearing was consistent and detailed, and any minor inconsistencies “did not render such testimony unworthy of belief” … . The child’s testimony was sufficient to establish a finding of sexual abuse pursuant to Family Court Act § 1046(b)(i) … .

At the reopened fact-finding hearing, the mother of the father’s other children (hereinafter the witness) testified that the child recanted her allegations of abuse. The child did not testify at the reopened fact-finding hearing. “[A] child’s recantation of allegations of abuse does not necessarily require [the] Family Court to accept the later statements as true because it is accepted that such a reaction is common among abused children” … . “Rather, recantation of a party’s initial statement simply creates a credibility issue which the trial court must resolve” … . Here, even assuming that the witness’s testimony was credible, it was insufficient to warrant dismissal of the petition. The witness testified that she overheard the child telling other children that the child missed the father. After the witness confronted the child, the child told the witness that “she wished that she never lied . . . by saying that [the father] did those things.” The witness did not specify what “things” the child was referring to. During cross-examination, the witness testified that immediately after she asked the child “what did she mean by she lied,” the child indicated that “she never said that.” The witness also testified on cross-examination that she had previously confronted the child about the allegations against the father, and the child told the witness that “she was sure . . . that these things took place.” The alleged recantation as described by the witness was vague, and the witness’s testimony was insufficient to rebut the finding of abuse … . Matter of Kenyana D. (Kenneth D.), 2024 NY Slip Op 03746, Second Dept 7-10-24

Practice Point: Here the evidence the child had recanted the child’s testimony that father had abused the child was too vague to rebut the abuse finding.

 

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FATHER’S FAILURE TO APPEAR DID NOT JUSTIFY FAMILY COURT’S AWARD OF CUSTODY TO MOTHER WITHOUT HOLDING A HEARING (SECOND DEPT). ​

The Second Department, reversing (modifying) Family Court, determined father’s default did not justify failing to hold a hearing before rendering a custody determination:

“[C]ustody determinations should generally be made only after a full and plenary hearing and inquiry” … . While “the ‘general’ right to a hearing in custody cases is not an absolute one[,] . . . [a] decision regarding child custody should be based on admissible evidence” and not “mere ‘information'” or hearsay statements … . Moreover, where the circumstances “fit within the narrow exception to the general right to a hearing[,] . . . a court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … .

Here, the Family Court erred in rendering a custody determination without conducting a hearing or without the submission of any admissible evidence, seemingly relying upon the hearsay statements of the attorneys … . Furthermore, the court failed to make any specific findings of fact regarding the best interests of the child, and failed to clearly articulate which factors were material to its determination … . Under the circumstances, the court should have granted that branch of the father’s motion which was to vacate the order … granting the mother’s petition for sole legal and physical custody of the child … . Matter of Akaberi v Cruciani, 2024 NY Slip Op 03745, Second Dept 7-10-24

Practice Point: Custody determinations should rarely be made without a hearing, even when a parent fails to appear.​

Similar issue and result in Matter of Meehan v Kittle, 2024 NY Slip Op 03754, Second Dept 7-10-24.

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THE COURT’S PRIOR ORDER STATED FATHER’S COMPLIANCE FOR SIX MONTHS WOULD CONSTITUTE A CHANGE IN CIRCUMSTANCES AND FATHER DEMONSTRATED SUCH COMPLIANCE; IN ADDITION MOTHER’S RELOCATION TO ARIZONA WITHOUT PERMISSION CONSTITUTED A CHANGE IN CIRCUMSTANCES; IN-PERSON VISITATION ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined father demonstrated a change in circumstances warranting in-person visitation with the children. The prior order of the court stated that father’s compliance for six months would constitute a change in circumstances and father demonstrated such compliance. In addition, mother’s relocation to Arizona without permission also constituted an actionable change in circumstances:

The prior order provided “that sufficient compliance with [the] order for a period of six (6) months will constitute a change of circumstances for [f]ather to re[-]petition for additional visitation time and overnights.” The father testified that he had been exercising his visitation consistently until the mother moved to Arizona with the children, an assertion that went unchallenged during the hearing. We conclude that the father established a change in circumstances based on his compliance with the terms of the prior order. We also conclude that the mother’s relocation without permission constituted a change in circumstances because it resulted in a substantial interference with the father’s visitation rights … .

Based on the record before us, we further conclude that modification of the father’s visitation schedule to include in-person visitation would serve the children’s best interests … . Matter of Hudson v Carter, 2024 NY Slip Op 03615, Fourth Dept 7-3-24

Practice Point: If a court order indicates compliance for six months will constitute a change in circumstances warranting modification of custody, that condition should be honored by the court.

 

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HACKED WEB CAM VIDEO EVIDENCE ALLEGED TO DEPICT ABUSE OF A CHILD IN MOTHER’S HOME WAS DEEMED BY THE MAJORITY TO HAVE BEEN SUFFICIENTLY AUTHENTICATED; STRONG DISSENT (FOURTH DEPT).

The Fourth Department, over a strong and comprehensive dissent, determined the video evidence allegedly showing abuse of her daughter was properly authenticated. The video was obtained in an unrelated investigation of a suspect who hacked into a security web camera which was linked to mother’s house:

The testimony at the fact-finding hearing established that the videos depicted the living room of the home in which the mother, the subject children, and the boyfriend lived. The State Police detective testified that the mother identified her daughter and boyfriend in screenshots taken from the videos; that he observed cameras in the house, including in the living room; and that he observed that the living room and its furnishings matched what was shown in the videos. As the court noted, the same couch, afghan, end table, and lamp were all visible in the videos and photographs. Other particularly specific items the police recovered from the home were also seen in the videos. In addition, the mother, the children, and the boyfriend were all easily identifiable in the videos. The court determined that the “actions, dialogue, and behavior shown in the videos show no indication of any tampering.” In other words, there were “distinctive identifying characteristics” in the videos themselves … . There was also the “significant fact” that the mother did not dispute that … . Rather, the mother confirmed through the screenshots from the videos that the individuals shown were her children and boyfriend. In addition, the FBI agent testified that he primarily investigated child pornography and performed digital forensic work and that he saw no signs of alteration or tampering with the videos. Matter of Mekayla S., 2024 NY Slip Op 03584, Third Dept 7-3-24

Practice Point; Here hacked web cam video footage was alleged to have been properly authenticated by the identification of persons depicted in screen shots from the video and the lay out and contents of the room depicted in the video. There was a strong dissent.

Same issue and result in the abuse proceeding against mother’s boyfriend, this time with two different dissenting justices, agreeing with and adopting the rationale of the dissenting justice in the proceeding against mother. Matter of Gabriel H., 2024 NY Slip Op 03588, Fourth Dept 7-3-24

 

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HERE FAMILY COURT ABUSED ITS DISCRETION BY DENYING FATHER’S “CHANGE IN CIRCUMSTANCES” PETITION WITHOUT A HEARING AND REQUIRING FATHER TO PAY MOTHER’S COUNSEL’S FEES EXCEEDING $12,000 BASED UPON A FINDING THAT FATHER HAD CONSUMED ALCOHOL IN VIOLATION OF A COURT DIRECTIVE; FAMILY COURT SHOULD HAVE FOCUSED ON THE BEST INTERESTS OF THE CHILD, NOT “THE NEED TO REGAIN MOTHER’S TRUST” (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have focused on evidence father may have consumed alcohol in violation of the court’s directive and should have focused on the best interests of the child. Based solely on finding father had consumed alcohol and in the absence of a violation petition, father’s petition for a modification of custody based upon a change in circumstances was denied without a hearing and father was required to pay mother’s counsel’s fees exceeding $12,000. The counsel’s-fee ruling was reversed and the matter was remitted for a “change in circumstances” hearing:

As we must remit the matter to Family Court, we caution the court away from directing that the father completely abstain from the consumption of alcohol or dictating the specific type of treatment method the father must utilize beyond what is necessary to protect the child during his parenting time … . However, that is not to say that if the father’s treatment plan requires abstinence from alcohol that he is not required to comply with such plan. Similarly, we must stress that “the first and paramount concern of the court” must be the best interests of the child … , and that the court should not rely upon the father’s apparent need to “regain the trust of the mother” as it had so heavily throughout the orders on appeal.

We also agree with the father’s contention that Family Court abused its discretion in awarding $12,385.55 in counsel fees to the mother based upon the foregoing conclusion. “When exercising its discretionary powers [to award counsel fees], a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions as well as the complexity of the case and the extent of legal services rendered” … . Here, despite no violation petition being filed against the father, the court found that “the father’s willful violation” of the prior custody order and his “deceptions concerning his alcohol consumption” warranted the imposition of counsel fees. Essentially this resulted in sanctioning the father for filing the modification petition based upon his subsequent consumption of alcohol … . Considering our determination as to the court’s mistaken determination that the father was unable to demonstrate a change in circumstances, we … reverse the court’s award of counsel fees to the mother as an abuse of discretion. Matter of Jacob L. v Heather L., 2024 NY Slip Op 03520, Third Dept 6-27-24

Practice Point: If a Family Court judge focuses on something other than the best interests of the child, here father’s apparent consumption of alcohol in violation of a court directive and mother’s need to trust father, an appellate court may reverse the judge’s rulings as an abuse of discretion, as it did here.

 

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FAMILY COURT HAS THE DECISION-MAKING AUTHORITY TO DETERMINE THE APPROPRIATENESS OF A CHILD’S PLACEMENT IN A QUALIFIED RESIDENTIAL TREATMENT PROGRAM (QRTP) AT EVERY PERMANENCY HEARING (FIRST DEPT).

The First Department, applying an exception to the mootness doctrine (appellate relief had already been granted), determined Family Court has the decision-making authority to determine the appropriateness of a child’s placement in a Qualified Residential Treatment Program (QRTP) at every permanency hearing:

… [W]e find that Family Court has the decision-making authority as to the appropriateness of the child’s continued placement in a QRTP at every permanency hearing (see Family Ct Act §§ 1088[b], 1089[d][2][viii]). A contrary reading goes against the express purpose of the Family First Act, which is aimed at reducing the use of institutional group placements for children in foster care by limiting the length of time that they can spend there. The Family First Act, codified in New York State through amendments to the relevant provisions in the Family Court Act and Social Services Law, explicitly seeks to “ensure[] more foster children are placed with families by limiting federal reimbursement to only congregate care placements that are demonstrated to be the most appropriate for a child’s needs, subject to ongoing judicial review ” … . Matter of Malachi B. (Tania H.), 2024 NY Slip Op 03534, First Dept 6-27-24

Practice Point: Family Court has the authority to review and decide the appropriateness of a child’s placement in a Qualified Residential Treatment Program (QRTP) at every permanency hearing.

 

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ALTHOUGH FATHER FAILED TO COOPERATE WITH THE PLACEMENT OF HIS CHILDREN WHILE INCARCERATED; HE MADE SERIOUS EFFORTS TO RECONNECT WITH THE CHILDREN AFTER HIS RELEASE; FAMILY COURT SHOULD HAVE GRANTED A SUSPENDED JUDGMENT RATHER THAN PERMANENTLY TERMINATING HIS PARENTAL RIGHTS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father, after his release from prison, made efforts to reconnect with his children which warranted a suspended judgment rather than permanent termination of his parental rights. While incarcerated father had not cooperated with efforts to place the children:

A suspended judgment “provides a brief grace period to give a parent found to have permanently neglected a child a second chance to prepare for reunification with the child” … . Notably, we may substitute our discretion for that of the trial court even in the absence of an abuse of discretion … , and here we conclude that a suspended judgment, rather than termination of parental rights, was in the children’s best interests … . At the time of the dispositional hearing—just two months after his release from prison—the father had found full-time employment, participated in weekly visitation with the children, had started communicating regularly with the children’s foster family regarding the children, and was in the process of finding housing and completing a mental health evaluation and parenting classes, while the children were reportedly happy to be visiting with the father regularly. “Given the child[ren]’s . . . young age, [the father’s] recommencement of regular visitation, . . . the sustained efforts on the part of [the father following his release from prison], and the Legislature’s express desire to return children to their natural parents whenever possible” … , we conclude that the father “should have been granted a ‘second chance’ in the form of a suspended judgment” … . Matter of Rodcliffe M., Jr. (Rodcliffe M., Sr.), 2024 NY Slip Op 03267, Fourth Dept 6-14-24

Practice Point: Family Court has the option of issuing a suspended judgment to give a parent a second chance to avoid termination of parental rights.

 

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INCARCERATED FATHER SHOULD NOT HAVE BEEN AWARDED IN-PERSON VISITATION WITH HIS SON ONCE EVERY SIX MONTHS; FATHER HAD STABBED MOTHER WHILE SHE WAS HOLDING THE CHILD AND FATHER HAD HARASSED MOTHER DURING PERMITTED PHONE CALLS (FIRST DEPT).

The First Department, reversing Family Court, determined the award of in-person visitation by the child with the incarcerated father once every six months was not supported by the record:

Visitation with a noncustodial parent, including an incarcerated parent, is generally presumed to be in the best interests of the child … . However, that presumption is rebuttable, and “a demonstration that such visitation would be harmful to the child will justify denying such a request” … .

Here, the evidence was sufficient to overcome the presumption in favor of visitation. The father is incarcerated in connection with his conviction for robbing and stabbing the mother while she was holding their child in her arms. The record indicates that the father has been incarcerated for most of the child’s life and that the father has had no meaningful relationship with the child … . … [T]he now five-year-old child would have to travel several hours each way to visit the prison at which the father is incarcerated, and the child is not comfortable being in a car or being away from her mother for an extended period … .

… [M]other testified that the father has used his permitted phone-calls with the child to harass the mother, despite her order of protection against him … . The position advocated by the attorney for the child was also entitled to serious consideration and supports modification of the court’s order … . Matter of Leroy W. (Shanequa W.), 2024 NY Slip Op 03238, First Dept 6-13-24

Practice Point: Here the presumption incarcerated father was entitled to in-person visitation with his son was rebutted.

 

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